NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 24 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS No. 24-6310 BOARD, NLRB Nos. 31-CA-226568 Petitioner, 31-CA-260895 v.

MEMORANDUM*

AIRGAS USA, LLC,

Respondent.

On Petition for Review of an Order of the National Labor Relations Board

Argued and Submitted October 8, 2025 Pasadena, California

Before: RAWLINSON, MILLER, and JOHNSTONE, Circuit Judges.

The National Labor Relations Board (NLRB or the Board) applies for

enforcement of an order issued against Airgas USA, LLC (Airgas) finding that

Airgas violated the National Labor Relations Act, 29 U.S.C. § 151 et seq. (NLRA),

by failing to provide its drivers with an annual wage increase in 2018 and by

unilaterally laying off one driver without meaningfully bargaining with the drivers’

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 24-6310 union. We have jurisdiction under 29 U.S.C. § 160(e), (f), and we grant the

application for enforcement.

We must “uphold a Board decision when substantial evidence supports its

findings of fact and when the agency applies the law correctly.” Kava Holdings,

LLC v. NLRB, 85 F.4th 479, 486 (9th Cir. 2023) (citation omitted).

1. The NLRA prohibits employers from “discrimination in regard to . . . any

term or condition of employment to encourage or discourage membership in any

labor organization.” 29 U.S.C. § 158(a)(3) (Section 8(a)(3)). An employer also

engages in an unfair labor practice if it refuses to bargain collectively with its

employees regarding the terms and conditions of employment. See 29 U.S.C.

§ 158(a)(5) (Section 8(a)(5)).1

Wage increases or bonuses are considered a term or condition of

employment “if they are of such a fixed nature and have been paid over a sufficient

length of time to have become a reasonable expectation of the employees and,

therefore, part of their anticipated remuneration.” NLRB v. Nello Pistoresi & Son,

Inc., 500 F.2d 399, 400 (9th Cir. 1974) (citations omitted). “Wage changes that

merely reflect continuations of past company policy are not considered changes in

1 “Any violation of Section 8(a)(3) or 8(a)(5) necessarily includes a derivative violation of Section 8(a)(1).” NLRB v. Swedish Hosp. Med. Ctr., 619 F.2d 33, 35 (9th Cir. 1980) (citation omitted).

2 24-6310 existing work conditions” that would require bargaining under Section 8(a)(5).

Aaron Bros. Co. v. NLRB, 661 F.2d 750, 753 (9th Cir. 1981) (citations omitted).

Substantial evidence supports the Board’s determination that Airgas violated

Section 8(a)(3) by withholding an established wage increase, with Airgas

motivated at least in part by anti-union animus. Airgas’s vice president of

operations testified that he annually ensured that newer drivers received an

increase to retain strong performers, and then distributed the remaining available

funds to more senior drivers. This practice is borne out in the data showing that

drivers who had worked on the job for at least one year since 2011 generally

received a $1 per hour wage increase each year from 2014-2017, while drivers

hired within the last year or before 2011 generally received an across-the-board

raise of between $0.50-$0.60 each year.

Substantial evidence also supports the Board’s finding of anti-union animus.

See Kava Holdings, 85 F.4th at 486-87 (explaining that the General Counsel’s

initial burden requires showing employer animus against protected activity).

Airgas managers made multiple statements to drivers indicating that union

participation would negatively affect drivers’ ability to receive wage increases,

including repeatedly reminding drivers that “October is coming,” stating that the

drivers had been “this close to getting a raise but would now get nothing,” and

informing the drivers that the managers couldn’t “help . . . with raises” if the

3 24-6310 drivers “vote[d] the union in.” Airgas also granted a wage increase to its

production employees who did not unionize, while withholding an increase from

its truck drivers who did. Because the Board made a finding of anti-union animus,

the burden shifted “to the employer to demonstrate that the same action would

have taken place even in the absence of protected conduct.” Healthcare Emps.

Union, Loc. 399 v. NLRB, 463 F.3d 909, 919 (9th Cir. 2006) (citation omitted).

Airgas failed to do so, pointing only to after-the-fact offers to bargain over wages

and other economic issues. Airgas also has no viable defense under NLRB v. Katz,

369 U.S. 736, 746 (1962), because the wage increase would constitute a

continuation of the status quo, and thus would not trigger a duty to bargain under

Section 8(a)(5). See Aaron Bros., 661 F.3d at 753.

2. Substantial evidence supports the Board’s determination that Airgas fired

a driver without engaging in bargaining, and that Airgas’s letter to the union

announcing the firing presented no genuine bargaining opportunity. “[W]here a

Union receives meaningful notice of a change in the terms and conditions of

employment and fails to request bargaining on the issue, it waives its right to

complain that the employer acted in violation of Sections 8(a)(5) and (1).” NLRB v.

Merrill & Ring, Inc., 731 F.2d 605, 609 (9th Cir. 1984) (citation and internal

quotation marks omitted). However, if an employer presents a fait accompli, “a

4 24-6310 union cannot be found to have waived bargaining when it never had an opportunity

to bargain.” Id. (citation omitted).

Airgas sent the Union a letter dated April 24, 2020, stating that the employee

would “be separated effective end of the day Wednesday, April 29”—a mere five

days later. Although this letter asserted that Airgas was “willing to bargain over

any aspect of this layoff procedure,” the Board reasonably concluded that Airgas

was not offering to bargain over the layoff itself. Indeed, the exchange between

Airgas and the Union attorney discussed only whether the separated employee

would receive severance or recall rights, not whether he would be separated at all.

Substantial evidence supports the Board’s finding that the layoff was thus a fait

accompli, providing the union no “opportunity to bargain.” Id.

Airgas does not challenge enforcement of the Board’s other determinations,

so we summarily enforce those parts of the Board’s order.

The Board’s application to enforce its order is GRANTED.

5 24-6310