This National Labor Relations Board (NLRB) decision addresses unfair labor practice charges filed by International Brotherhood of Teamsters Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales, Industrial and Allied Workers Local 848 (the Union) against Airgas USA, LLC (the Respondent). The core allegations concern the Respondent’s withholding of a wage increase from union-represented employees and unilateral changes to terms and conditions of employment.

The Administrative Law Judge (ALJ) Ariel L. Sotolongo issued a decision on February 25, 2022, finding that the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act (NLRA) by discriminatorily withholding the October 2018 wage increase from unit employees and violated Section 8(a)(5) and (1) by making unilateral changes to schedules, reducing hours, altering overtime procedures, and laying off employee Cameron Desborough without proper notice and bargaining.

The NLRB, affirming the ALJ's findings and conclusions with modifications to the recommended order, found that the Respondent violated Section 8(a)(5) and (1) by unilaterally adjusting unit employees’ schedules, reducing their hours, changing overtime procedures, and laying off Cameron Desborough. The Board agreed with the ALJ that the Respondent’s April 24, 2020, letter regarding Desborough’s layoff was presented as a fait accompli, leaving the Union with insufficient opportunity to bargain over the decision itself. The Board further found these unilateral changes violated Section 8(a)(5) and (1) because they were made during the pendency of negotiations for an initial collective-bargaining agreement, a period during which the employer has a heightened duty to refrain from unilateral changes absent an overall impasse. The Board rejected the Respondent’s contention that economic exigencies due to the COVID-19 pandemic justified these actions, finding the Respondent did not meet the high burden of establishing that the decline in business required immediate action that would excuse bargaining obligations.

Additionally, the NLRB agreed with the ALJ that the Respondent violated Section 8(a)(3) and (1) by withholding the October 1, 2018, wage increase from unit employees. The Board relied on the Respondent's statements to employees, such as taunting them with "October is coming" and linking raises to union activity, as direct evidence of animus. The Board affirmed the ALJ's finding that the annual October wage increase was an established past practice and a term and condition of employment. The Board meticulously detailed the documentary and testimonial evidence establishing the consistent practice of providing annual wage increases since at least 2014, typically in October, with fixed criteria determining the amounts. The Board found the Respondent's departure from this practice in 2018 was motivated by the employees' union activity.

The Board also modified the ALJ's recommended order to conform to standard remedial language, particularly by including a clarified make-whole remedy. This remedy compensates employees for any other direct or foreseeable pecuniary harms, including search-for-work and interim employment expenses for laid-off employees, in addition to lost earnings. The Board addressed a dissenting member's concerns about this remedy's validity, asserting that the Fifth Circuit's decision in Thryv, Inc. v. NLRB did not negate the Board's authority to order such a remedy, as the court's vacatur was based on underlying unfair labor practice findings, not a lack of authority. The Board reiterated its long-standing policy of nonacquiescence in adverse appellate court decisions, meaning Thryv remains binding Board precedent.

Member Kaplan dissented in part. He disagreed with the majority’s finding that the October 2018 wage increase was based on an established past practice, arguing the variability in raise amounts and lack of clear fixed criteria prevented such a finding. Consequently, he would not have found the Respondent’s statements to employees regarding the wage increase demonstrated anti-union animus, citing Advanced Life Systems, Inc. v. NLRB and Arc Bridges, Inc. v. NLRB. Member Kaplan also dissented on the layoff of Cameron Desborough, finding the Respondent provided sufficient notice and an opportunity to bargain, and that the April 24, 2020, letter was not a fait accompli. He argued that the situation fell under the RBE Electronics of S.D. exception to the Bottom Line rule, allowing employers to take prompt action in response to economic exigencies with limited bargaining. Finally, Member Kaplan disagreed with the majority's reliance on Thryv for the expanded make-whole remedy, arguing that the Fifth Circuit's vacatur of that specific remedy rendered it invalid precedent.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): This case established the framework for analyzing discriminatory motive in unfair labor practice cases, requiring the General Counsel to show that protected activity was a motivating factor and the employer to show it would have taken the same action in the absence of that activity.
• NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): This Supreme Court decision established that certain employer actions, even if they have legitimate business justifications, can be deemed unfair labor practices if they are inherently destructive of employees' Section 7 rights and lack legitimate and substantial business justifications.
• Bottom Line Enterprises, 302 NLRB 373 (1991): This decision clarified that during negotiations for an initial collective-bargaining agreement, an employer's obligation to refrain from unilateral changes extends to refraining from implementation until an overall impasse is reached, with limited exceptions for extreme economic exigencies or union delay tactics.
• Advanced Life Systems, Inc. v. NLRB, 898 F.3d 38 (D.C. Cir. 2018): This D.C. Circuit case held that an employer's statements about potential wage freezes due to unionization, without more, were insufficient to establish anti-union animus, particularly when a wage increase was not an established past practice, as giving it could violate Section 8(a)(5).
• Thryv, Inc. v. NLRB, 102 F.4th 727 (5th Cir. 2024): This Fifth Circuit decision vacated certain paragraphs of the NLRB's order in Thryv, Inc., including a clarified make-whole remedy, but the NLRB in Airgas USA asserted that the underlying Board precedent in Thryv remains valid due to the Board's policy of nonacquiescence.

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