AIRGAS USA LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 7, 2016

09-CA-158662 (N.L.R.B. Jul. 7, 2016)

JD−61−16
Cincinnati, OH
1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AIRGAS USA, LLC
and Case 09–CA–158662
STEVEN WAYNE ROTTINGHOUSE, JR.
an Individual
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 answer, 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 demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following

1 All dates are in 2015 unless otherwise indicated.
2 For brevity purposes, counsel for the General Counsel will be referred to as the “General
Counsel.”
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Findings of Fact
I. JURISDICTION
5
Respondent, a Delaware limited liability company, has been engaged in the retail sale
and distribution of industrial gases 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 10
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 PRACTICES15
A. Background
1. Airgas management
20
Respondent has operated its sale and distribution of industrial gases business at its Cin-
Day plant for about 8 years. At all relevant times, Clyde Froslear (Froslear) has been
Respondent’s operations manager over several of Respondent’s facilities, 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 employee relations. 25
David Luehrmann (Luehrmann) is the Cin-Day plant manager, who directly manages the day-
to-day plant activities and employees. Both he and Froslear discipline employees 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 disciplinary meetings.
Along with his managers, he typically signs or initials most discipline.4 30
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 35
sometimes bottles). Drivers must secure them inside metal cages or pallets with straps and
ratchets; and fasten them onto the trailers. 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 40

3 Abbreviations used in this decision are as follows: “Tr.” for Transcript; “GC Exh.” for General
Counsel Exhibit; “R. Exh.” for Respondent Exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for General
Counsel’s Brief; and “R Br.” for Respondent’s Brief.
4 The parties also stipulated that Froslear and Luehrmann are Respondent’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.
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3
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 12-5
pack cradles) and secure them with two straps so that each one 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. 10
The Department of Transportation (DOT) regulates the manner 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 15
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 20
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 hazards associated with it such 25
as loose cylinders falling and unsecured 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).
30
Respondent also provided employees with safety training on compliance, safety and
accountability (CSA) in 2014. Commercial 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),35
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 experienced commercial drivers at 40
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

5 MacBride trains new Airgas drivers on policies and safety procedures. 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.)
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4
rule violations. Training records show that he attended and satisfactorily completed the various
safety trainings and presentations provided by Respondent, including those described above on
proper load securement. (GC Exh. 6.)
Rottinghouse was an active member of the Union. In addition, prior to the underlying 5
charge in this case, he filed two other charges with the Board. In the first, Case 09–CA–
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 employee safety meetings. Froslear and Luehrmann provided affidavit 10
testimony in that case (on July 13), which was subsequently 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, severe
violation of Airgas and Department of Transportation (DOT) policy when on June 22, he 15
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.) 20
Rottinghouse and Froslear also attended a grievance meeting on August 5 concerning
his prior three-day suspension.7 (Tr. 61–62; 147–148).
B. August 3, 2015 Incident, Its Aftermath and Discipline 25
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 30
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.
35

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.)
JD−61−16
5
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 avoid hitting the gate.10 At
that point, without having to get out, he pushed the gate back away from his truck, and
proceeded through the entrance and parked his truck in Cyn-Day plant’s yard close to the 5
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, 10
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 further testified that as
he continued on to the rear passenger side to the truck’s lift controls, Froslear walked back into 15
the building without saying a word. It is undisputed that next, Rottinghouse 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 20
entrance when he witnessed Rottinghouse 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 25
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
proceeded out to photograph the cylinders on the back of Rottinghouse’s truck. Froslear never 30
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 window) fix the leaning cylinders. (Tr. 28–30, 37–38, 65).
Froslear denied seeing Rottinghouse at any time after he [Rottinghouse] parked his 35
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 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 40

10 I credit Rottinghouse’s testimony that he made an abrupt, “hard” stop at the entrance gate.
Oestreicher supported it, stating that Rottinghouse “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.)
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6
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 witnessed the cylinders tilt over.
There is no dispute that the photograph that Froslear took accurately depicts the 5
condition of the leaning cylinders in question 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.) 10
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 15
MacBride “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 responded, “[t]his is the way it was 20
when he pulled in after his run.” MacBride emailed back “Unacceptable” Froslear then asked
“[w]here would I find the strongest language about load securement 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 Rottinghouse 25
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
30
August 6 discipline meeting
On August 6, Froslear and Luehrmann met with Rottinghouse 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: 35
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.40

12 Froslear took notes of each of these meetings, which were submitted 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
meetings. 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.
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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:5
As an Airgas Driver, you are expected to take personal responsibility 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 10
transporting them, as well as follow all other DOT procedures while performing
any other duties related to your job.
Consequences of not following recommended action:
15
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 responsibility 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 20
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 25
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 30
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 35
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 trailer 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, rearrange the straps and tighten the 40
load down?” Then, Rottinghouse refused to sign the letter, and the meeting ended. (Jt. 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

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.
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taken. Froslear showed him the pictures. According to Froslear’s notes, both he and Perkins
“agreed the pictures show the cylinder[s] were loose and could understand why Steve fixed
them before leaving.” (Id.)
The grievance/claim stated in relevant part the following:5
[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 cylinders were from Hy C23 with loose cyls. Requested
pictures for union. Refuse to show pictures . . . Leaning cyls were fixed Before 10
leaving yard written warning is excessive, Should Be Removed
(Jt. Exh. 8.)
September 2 grievance meeting15
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 20
the yard and I should not have received a warning letter.” Froslear responded:
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 25
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.”
30
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 35
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 40
representative, and Barry Perkins representing Rottinghouse, and Luehrmann and Froslear for
Respondent. Butts read the grievance and said that they were there “to reduce 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: 45
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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 secured 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.5
(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 10
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.) 15
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.) 20
C. Respondent’s Discipline Policies And Discipline Issued
1. CBA
25
The collective-bargaining agreement (CBA) between Respondent and the Union Local
100, 15 article 22 (rights of management section), set forth the manner in which Respondent
should take disciplinary action against employees who violated rules and regulations. Its
relevant parts state:
30
Disciplinary action taken by the Employer for violation of either Company rules
and regulations or employees’ violations of articles contained herein, will be
handled in the following manner:
A. Written warning notice stating violation will be given to employee, 35
with a copy to Union and Union Steward 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;40

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.
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10
. . .
E. The warning letter shall remain active in an employee[‘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.5
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 discipline.
10
(Jt. Exh. 4, p. 16.) Therefore, according to the CBA, all discipline 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/Policy15
There is little dispute that the Cin-Day facility management discipline policy departed
from the CBA’s article 22. However, 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 “progressive discipline policy” works, Froslear stated that “[f]or 20
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 disciplinary policy during two
safety meetings with employees in April (28th). When asked if he told employees in those 25
meetings that they would receive verbal warnings for minor offenses, 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
testimony that: 30
At the meeting I wanted to make clear to the employees that once they violated a
rule for the second time, they would receive a written warning…In the collective
bargaining agreement for this facility…the disciplinary process says that an
employee will. . . get a written warning after the first violation of rule . . . 35
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.
40
(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 document 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 45
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
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11
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.)
5
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 employee to make sure he was wearing his safety glasses. If the manager
then saw the same employee committing the same infraction, the manager would give that 10
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). Unlike Froslear, Luehrmann’s
hearing testimony regarding this matter was consistent with his (Luehrmann’s) prior affidavit 15
testimony. Therefore, for purposes of this case, I credit Luehrmann’s more consistent,
testimony regarding statements made by Froslear at those April employee safety meetings.
3. Discipline issued by Respondent
20
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 25
warning” or “warning letter,” and considered 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 cylinder incident. In addition, it 30
reflects that Respondent’s practice, irrespective of the CBA, article 22 provision, was to issue
documented 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).
35
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 unsecured pallet. This was documented as a DOT violation, and he
was required to review DOT/Safecor driver requirements for securing cylinders and to ride 40
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).

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.
JD−61−16
12
Most verbal discipline was documented as a “verbal counseling” or “verbal warning.”
In 2013, they were issued to: employee 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
employee Perkins for not wearing a seatbelt while using a forklift. In 2015, to employees Huff 5
and Kinkade for DOT violations of clocking in 1-3 minutes early17, and to employee
Oestreicher 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 10
$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 15
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 performing the pre-fill inspection
process (costing the operation $2,500). (GC Exh. 4, pp. 3, 11).
“Written counseling” statements and “written warnings” were issued as follows: in 20
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 internally and violates DOT requirements;” in
2013, to employee Hollander for not wearing a seat belt while operating a forklift, noting that 25
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 uncovered recently,” and which cost Airgas $4500; in
2016, to employee 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 30
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, 35
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

17 DOT regulations require that commercial truck drivers be off duty for 10 consecutive hours prior
to clocking in for their next shift.
18 There was no evidence presented that this “Steve” was the Charging 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.)
JD−61−16
13
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 5
unsecured loads, “going down the road with incorrect paperwork” (failing to provide complete
and correct trip load verification and hazardous 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 Respondent having to spend thousands of dollars in
costs. (Tr. 94). I reiterate that he did not share these distinctions with employees during the 10
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 major/serious
violations. Regarding the first, employee Jeffries only received verbal discipline for his 15
preventable vehicle backing accident on May 10, 2013. (GC Exh. 7.) This particular 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 20
hearing. However, I discredit testimony that he was not familiar 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 serious offense. Next, I find it
incredulous, that in employee Reed’s case, Froslear did not consider a commercial truck driver
talking on the phone while driving on the road a serious DOT infraction. He obviously 25
believed it to have been at the time, since it was reduced from some form of greater
punishment. Moreover, DOT apparently considered it to be a serious or major violation since it
levied substantial fines for such offenses on both drivers ($2570) and their employers ($11,000)
(for Company). (GC Exh. 4, p. 10.)
30
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. ANALYSIS35
A. Preliminary Determinations
1. Evidentiary finding
40
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

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.)
JD−61−16
14
August 6. He further testified that after the August 6 meeting, he (Rottinghouse) he took a
video recording, with audio, of him shaking 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
Rottinghouse’s claim that the noise that Froslear heard on August 12 came from the 12-pack of 5
hydro cylinders, over which Rottinghouse 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
remained in the same condition (i.e., no chain of custody evidence presented). Next, there is no
evidence that Rottinghouse’s shaking demonstration constituted an accurate simulation of 10
motion and rattling that might have resulted from a sudden stop at the plant’s gate. (Tr. 152–
161; Jt. Exhs. 1, 7, 9–10.)
2. Credibility
15
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 Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, supra at 623 (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 20
(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 25
evidence, but considered it and determined it is not essential 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 30
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 explanation 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 Rottinghouse’s testimony that 35
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 Oestreicher (see below), the
cylinders were not properly secured. As stated, even Rottinghouse believed that they were not, 40
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 responsible 45
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
JD−61−16
15
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 Perkins5
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 General Counsel’s witness,
Oestreicher, testified that based on his 21 years of driver experience, it is quite possible and “in 10
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 similarly leaning cylinders, he probably would not have retied them: “I mean, if it looks 15
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 20
Rottinghouse’s truck frequently come loose under the following circumstances:
. . . if you don’t have those straps exactly right on those cylinders 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 25
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. 30
(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 cylinders in the photograph appeared to have been in danger of coming completely loose or
falling down. Unlike Oestreicher, he admitted that if he had similarly tilted bottles on his truck, 35
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 cylinders 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. 40

20 There is no dispute, as stated above, that local drivers were required to check and make any
readjustments necessary to their loads at each stop.
JD−61−16
16
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 properly secured or nested, and at 5
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 10
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
admitted that it was not common, but possible for properly secured cylinders to come loose.
(Tr. 43–45.)
15
MacBride testified that “[e]xcessive slamming on brakes could cause moving of
cylinders.” Initially, he defined excessive 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 coming to a sudden stop after accelerating through an open gate from a stopped 20
position would cause properly strapped cylinders 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 considered 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 matter whether they are tilted over or freely falling and/or 25
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
testified that if he saw a driver with leaning cylinders, he would go find the driver and tell him
to fix it. (Tr. 213–214.)
30
I discredit testimony of Rottinghouse, Perkins, and Oestreicher 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 discipline. 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 35
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. Rottinghouse entered the gate,
stopped to open it and began to move through the gate before having to hit his brakes. 40
Although there was no evidence as to Rottinghouse’s speed after he reopened the gate and
entered the plant yard, I find it implausible that it would have been fast enough such that hard
braking would have caused appropriately tied cylinders to loosen and lean over. Therefore, I
find it more likely than not, that the cylinders on Rottinghouse’s truck were not properly
fastened when he left the GE stop. 45
JD−61−16
17
On the other hand, I discredit Froslear’s testimony that he actually 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 Rottinghouse pulled into the yard, but on further questioning, admitted
that they did not fall, but rather tilted. Further, he failed to mention in his emails to MacBride 5
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 Rottinghouse the 10
warning letter on August 6, he said that he “witnessed 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 cylinders 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 15
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
Rottinghouse was, but he certainly knew that he was somewhere on the premises. In addition, 20
he knew to watch through a window to see what Rottinghouse would do next after he (Froslear)
finished taking the pictures. I do not believe that it was mere coincidence 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 manager concerned about safety or
even about his drivers or Company receiving DOT citations and fines for driving with 25
unsecured loads.
Neither Froslear nor Rottinghouse were entirely honest regarding 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, misrepresentation about 30
falling cylinders, dishonesty about not seeing Rottinghouse outside near the truck, failure to
physically examine the cylinders on the truck and failure to find Rottinghouse 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 reduce it to a verbal
counseling or warning. 35
B. Legal Standards
Under Section 8(a)(4) of the Act, it is unlawful for an employer to discipline or 40
otherwise discriminate against an employee 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).
JD−61−16
18
In cases in which motive is an issue, the Board analyzes 8(a)(4) and (1) violations under
the Wright Line framework.21 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 5
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 employer to
that it would have taken the same action even in the absence of the protected conduct.
(Id.) 10
The Board will consider circumstantial as well as direct evidence 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) disparate treatment in implementation of discipline; (4) inappropriate 15
or excessive penalty; and (4) employer’s shifting or inconsistent 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).
20
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 25
is also no genuine controversy that the Board processed and investigated 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 30
elicit testimony from the Charging Party. As for the latter, it is clear that the Board conducted 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 35
have also credited testimony that Froslear participated 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 animus. First, I find that the timing of the warning in this case 40
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

21Wright 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, 546–547 (2007); American
Gardens Management Co., 338 NLRB 644, 645 (2002).
JD−61−16
19
because Rottinghouse’s filed his first charge in Case 09–CA–152301 almost three months prior
to issuance of his warning letter. (R. Br. at 10–11.) The investigation in that case was ongoing
as evidenced by the affidavits of Froslear and Luerhmann, 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 5
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 deciding
official generally knew about the charging party’s protected activity, he was not involved or
implicated in any of the incidents “which could fairly give rise to an inference of animus.” 10
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 15
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 failure to locate Rottinghouse 20
and address the conditions of the cylinders on Rottinghouse’s truck immediately after he
discovered 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 dishonesty discussed above, leads me to doubt his real motive in disciplining
Rottinghouse. He and MacBride gave pretty detailed testimony about how improperly secured 25
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 Rottinghouse’s truck. In fact, MacBride admitted that had he discovered the tilted
cylinders, he would have tried to find the driver to correct them. I do not disagree that
unsecured cylinders pose a potential risk of harm to the driver and others. However, I take 30
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 getting 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 35
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 40
returned to the road.
Although counsel did not ask how Froslear could tell from a window inside the plant
that Rottinghouse had properly nested 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 45
and/or physically examining them. In addition, given that Froslear described in such detail how
Rottinghouse had not nested the cylinders, it is surprising that he never mentioned anything
JD−61−16
20
about nesting in his emails to MacBride, 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 5
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 10
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 regarding what he told employees in
the April safety meetings was inconsistent with his Board affidavit testimony and with that of 15
Luehrmann. He testified that he was establishing new discipline policy going forward, but the
record shows that Respondent 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 20
truck driver driving 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 addition, employee Jeffries received a verbal warning
for a major preventable backing accident. 25
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 Rottinghouse a written warning, both deemed to be equal in magnitude. Froslear testified
that the leaning cylinders on Rottinghouse’s truck were just as dangerous as those on employee 30
Huff’s truck in 2011, in that they were at risk of coming completely 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 35
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 secure cylinders and follow other DOT/safety procedures.
40
I do not believe Froslear’s testimony that he issued the warning 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 45
Rottinghouse believed he should have received 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
JD−61−16
21
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
necessitated 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 5
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. 10
Finally, Froslear’s out to get you attitude towards Rottinghouse 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. 15
I have considered all of the arguments and case law offered by the General Counsel22
and Respondent, even that not specifically 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 11–20
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 protected activity and
credibility.23 The Board has held that settlement agreements do not preclude consideration of
pre-settlement statements or conduct as evidence shedding light on a respondent’s subsequent 25
discipline of a charging party. See Kaumagraph Corp., 316 NLRB 793, 794 (1995) (evidence
of presettlement conduct admissible as background for respondent's motivation).
Therefore, based on the evidence as a whole, I conclude that the General Counsel has
met its initial burden of persuasion under Wright Line of showing through sufficient 30
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 Activity35
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 40

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 argument 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.)
JD−61−16
22
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.”).5
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.
Accordingly, I conclude that under a Wright Line analysis, the Respondent violated Section
8(a)(4) and (1) by issuing Rottinghouse a letter of warning. 10
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.15
2. By issuing Charging Party, Steven Wayne Rottinghouse, Jr., a written warning on
August 6, 2015, Respondent has engaged 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.
20
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, Respondent shall make Rottinghouse whole by 25
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 recommended2430
Order
The Respondent, Airgas USA, LLC, Cincinnati, Ohio, its officers, agents, successors,
and assigns, shall35
1. Cease and desist from
(a) Issuing discipline to employees, or otherwise discriminating against
them, for giving affidavits, filing charges or otherwise participating in the National Labor 40
Relations Board process.

24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
(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 a
Act.5
(a) Within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful letter of warning, 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. 10
(b) Within 14 days after service by the Region, post at its
Cincinnati, Ohio, copies of the attached notice marked
forms provided by the Regional Director for Region
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 15
days in conspicuous places including all places where notices to
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 customaril
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not 20
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since August 5, 2015, the date of the 25
(c) Within 21 days after service by the Region, file with the Regional
Director for Region 9 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
30
Dated Washington, D.C.

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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD−61−16
23
ffirmative action necessary to effectuate the policies of the
facility in
“Appendix.”25 Copies of the notice, on
9, after being signed by the Respondent’s
its employees
y communicates with its employees by such
letter of warning.
July 7, 2016
are customarily
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discipline employees or otherwise discriminate against them because they
have provided an affidavit, filed a charge or otherwise participated in the National Labor
Relations Board process.
WE WILL NOT in any like or related manner interfere with, restrain, 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
(Employer)
Dated ____________ By __________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935
to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (513) 684-3750.