Asarco Inc. Mission Unit

National Labor Relations Board - Board Decisions

May 7, 1986

279 N.L.R.B. 867 (N.L.R.B. 1986)

ASARCO INC. MISSION UNIT
Asarco Incorporated Mission Unit and International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Local No.
310; International Union of Operating Engi-
neers, Local 428, AFL-CIO; International
Brotherhood of Electrical Workers , Local 570,
AFL-CIO; and United Steelworkers of Amer-
ica, AFL-CIO. Case 28-CA-7758
7 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 4 March 1985 Administrative Law Judge
Russell L. Stevens issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. i
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i In dismissing the complaint, we conclude that the Respondent's con-
duct was neither inherently destructive of the employees' Sec 7 rights
nor did it reasonably tend to interfere with , restrain , or coerce employees
in the exercise of such rights . In so concluding, we emphasize our reli-
ance on the particular facts of this case
Jane V. Goldman, Esq., for the General Counsel.
John F. Boland Jr., and Barbara Torrez, Esgs. (Evans,
Kitchen & Jenkes, P.C.), of Phoenix, Arizona, for the
Respondent.
Gregory Y. Harris, Esq. (Davich & Pollock, Ltd.), of Phoe-
nix, Arizona, for the Charging Parties.
867
1984.1 The complaint, issued August 3, 1984, is based on
a charge filed March 26, 1984, by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Local No. 310; International Union of
Operating Engineers , Local 428, AFL-CIO; Internation-
al Brotherhood of Electrical Workers, Local 570, AFL-
CIO; and United Steelworkers of America, AFL-CIO
(the Union or by a particular Local's designation). The
complaint alleges that Asarco Incorporated Mission Unit
(Respondent) violated Section 8(a)(1) of the National
Labor Relations Act (the Act).
The parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally , and to file beefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent and coun-
sel for Steelworkers. A reply brief, which also has been
carefully considered, was filed by counsel for Steelwork-
ers, with my leave.
On the entire record2 and from my observation of the
witnesses and their demeanor , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is, and at all times material herein has
been, a corporation duly organized under , and existing
by virtue of, the laws of the State of New Jersey. At all
times material herein Respondent has maintained an
office and place of business at its Mission Unit mine lo-
cated in Pima County, Arizona, where it has been en-
gaged in the mining and milling of copper ore. During
the past 12 months, which period is representative of its
operations, Respondent, in the course and conduct of its
business operations, sold and shipped from its Arizona
operations products valued in excess of $50,000 directly
to points outside the State of Arizona, and during the
same period of time , purchased and received at its places
of business in the State of Arizona goods and materials
valued in excess of $50,000 directly from points outside
the State of Arizona.
I find that Respondent is, and at all times material
herein has been , an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Tucson, Arizona, on December 13,
I All dates are in 1983 unless otherwise stated
2 The General Counsel filed with her brief a motion to correct record,
which noted many transcript errors. That motion was not opposed and is
granted
279 NLRB No. 117
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No. 310;
International Union of Operating Engineers, Local 428,
AFL-CIO; International Brotherhood of Electrical
Workers, Local 570, AFL-CIO; and United Steelwork-
ers of America, AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Backgrounds
Respondent's unit employees, totaling approximately
275, are represented by the four Unions named in the
above caption . Steelworkers represents the approximate-
ly 40 employees of the diesel shop, which is involved in
this controversy. Respondent and the Union have a col-
lective-bargaining agreement which includes, among
other provisions, a grievance procedure of three steps.
The first step covers oral grievances presented by an em-
ployee , or a union representative acting on behalf of an
employee, to a supervisor. The second step requires that
a chief steward be present. The third step is a formal
one, presented to an arbitrator. Each of the four Unions
has a chief steward. Harvey Aldrich is, and for several
years has been, chief steward for Steelworkers. His im-
mediate supervisor is Dale Sorenson , who is Respond-
ent's assistant labor foreman. In the past, a single union
representative has presented first-step group grievances
to Respondent on behalf of several employees, when
such action was necessary.
On December 8, 1983, Frank Bowyer, chief steward
for the Teamsters, talked with his supervisor, Francis
Edwards, about presenting a group grievance relative to
work schedules, on behalf of employees required to
come to work early to start trucks. The following morn-
ing at approximately 8 a.m., Bowyer met with Edwards
and Gene Allen, a mechanical general foreman, and was
told a group grievance would not be accepted from a
single representative, but that all employees of the group
wanting to present grievances must present themselves to
a foreman , or must sign letters authorizing a person to
act for them. Bowyer objected and said the contract per-
mitted group grievances in the manner he desired. They
argued, and Bowyer asked to speak with Charles
McClain, the mechanical superintendent in charge of the
shops. Edwards and Allen said they would not accompa-
ny Bowyer, and the latter went alone to McClain's
office. After he arrived there, Bowyer asked for a stew-
ard to be present . McClain called someone on the tele-
phone, and Aldrich later entered the office. The three of
them talked about the problem for a few minutes, and
McClain attempted, without success, to reach Allen on
the telephone. McClain then told Bowyer and Aldrich to
"hang loose," and he would get in touch with them later.
Shortly after lunch on December 9 Bowyer was told
to go to the office of Doyle Shaw, Respondent's truck
8 This background summary is based on credited testimony and evi-
dence not in dispute.
shop superintendent .4 When Bowyer arrived in Shaw's
office, McClain, Edwards, Allen, and Shaw were there.
They talked briefly , and McClain explained that Re-
spondent's position was the same as Allen had told
Bowyer earlier that day. Bowyer asked why everyone
was present , and asked for a steward . Someone left, and
Aldrich later joined the group. The problem was dis-
cussed at length and repeatedly for 10 to 20 minutes. At
some point during the meeting Wilford Bejarano, a me-
chanical foreman, came into the room. Based on
McClain 's statement that all grievants must be present at
the first step, Bowyer said he wanted to leave and bring
in the shop employees. McClain objected that such
action would shut the shop down. McClain and Bowyer
argued about the problem thus presented, and Bowyer
left. Bowyer walked toward the shop and could see that
no one then was in the shop area. He turned and started
back toward Shaw's office. As he neared Shaw's office,
he heard his name called by Aldrich. While Bowyer had
been out of Shaw 's office , an incident had occurred in-
volving Aldrich and Shaw, which is discussed in detail
infra, as the basis for the complaint. Bowyer and Aldrich
went from the hallway just outside Shaw's office into the
shop. Together, they located four or five grievants,
whom they accompanied into Shaw's office 5 to 7 min-
utes after Aldrich had left Shaw's office. The grievance
then was registered with McClain and Allen by Aldrich
and Bowyer. McClain, Allen, Edwards, and Bejarano
also were present. Later the same day, approximately at
4 p.m., Aldrich and Bowyer presented the grievances,
and the presence, of three or four more grievants, and
still later, approximately at 4:15 p.m., did the same for
another group of two or three grievants.a During those
grievance meetings, also present were Allen, McClain,
and Dale Motes . Edwards was present at the meeting of
4 p.m., but not the one at 4:15 p.m.
Issues
The principal issues are whether or not Shaw assaulted
and hit Aldrich during the meeting of December 9 just
after lunch and, if he did, whether or not Shaw violated
the Act in so doing.
A. The Incident of December 9
Aldrich testified that, just after Bowyer left the office,
he started walking toward the door:
And I got approximately to the door, and Mr.
McClain says, Look, Harley, he says, I don't want
you to bring any grievances---grievants in here, that
is not part of this grievance today. And I replied to
Mr. McClain, I said , Look, Mr. McClain , this griev-
ance affects every employee in this diesel shop. And
at that time---at the time---about the time that con-
versation broke off, Mr. Shaw got up, who is sitting
behind a desk in that office, he walked around to
* The statutory supervisory status of Shaw , Edwards, Allen, and
McClain is not in dispute.
5 Allen testified to different numbers of grievants, but that fact is not
material to the issues
ASARCO INC. MISSION UNIT 869
the front of his desk, and come over towards me,
where I was, approximately by the door, he says, I
want you to get out of here. And about that time, I
turned around and when I turned around, and was
about ready to move out the door, I probably took
maybe a half a step or something, I really don't
know. He come under me, between my body and
my left arm with his right arm, he come underneath
it, brought it underneath my armpit, and drug me
outside, and that time I looked over about the time
he was dropping his arm from underneath my arm,
I seen Bowyer, I shout Bowyer, at that time he
dropped his right arm, turned me around and at the
same time he said, You stay out of here, and he
took his left hand and hit me with a shoving motion
on my left shoulder, which I kind of stumbled away
at that time.
Q. What did Mr. Shaw do after that?
A. He went back in the office.
Aldrich testified that he walked 30 or 35 feet to where
Bowyer was, said Shaw threw him out of the office, and
stated, "I think I hurt my shoulder." They then decided
to take the grievants into the office. Aldrich further testi-
fied: he first felt pain in his shoulder when Shaw placed
his arm in Aldrich's armpit . He did not mention his pain
to anyone on December 9, other than to Bowyer when
he saw the latter just after leaving the office. He was
going to report it to Sorenson, but could not find him.
He delayed possibly reporting the incident to Sorenson
because "I was going to see if it [the pain] was going to
continue or if it went away," although all injuries other
than slight matters are supposed to be reported by the
end of the shift. After the last grievance meeting
McClain said to him, "Look Pal, I want you to under-
stand something, some of the things that happened
around here today, is not the customary thing." He
talked with Sorenson on the telephone December 10 and
reported the incident and the injury. Sorenson expressed
shock, inquired about the injury, asked if Aldrich wanted
to go to the hospital, and stated that if he did not, they
would discuss the matter on Monday (December 12). He
talked with Sorenson December 12, and an accident
report form was filled out by Sorenson. Later that day
he saw Dr. McGinnis, Respondent's doctor, who exam-
ined him and prescribed Flexeril, a muscle relaxant. He
also saw his personal doctor, Dr. Khan, who prescribed
no medication. He stayed on Flexeril 2 days and thereaf-
ter changed through McGinnis to Parafon Forte to avoid
side effects during working hours. He took Parfon Forte
approximately 8 or 10 days and again visited McGinnis
December 19. By the end of the week of December 19,
all pain had ceased
On cross-examination Aldrich testified: he has been an
active union member, officer, steward, negotiator, and
grievance processor at Respondent's shops for many
years. He has worked with Respondent on more than
500 grievances, frequently with Shaw, whom he found
to be soft-spoken and affable. Shaw has never (other
than the incident involved herein) been offensive or hos-
tile toward him. When he first visited McGinnis, he ex-
plained his injury in detail and was taken through vari-
ous arm , shoulder, and back movements to describe his
physical condition . When Shaw first got out of his chair
in the office during the incident, Shaw stated, "I want
you to get out of here." Thereafter, as they walked
toward the door , Shaw touched him, Aldrich "tightened
up, turned into him," and Shaw was holding his left arm
as they went into the hallway. In the hallway, Shaw hit
him on the back and dropped his (Shaw 's) arm. He did
not complain to any company representative during any
of the three grievance meetings , about Shaw 's conduct
toward him, nor did he say anything about Shaw injur-
ing him . When Shaw ushered him out into the hallway
during the incident, he said, "Stay out here."
Bowyer testified that when he heard Aldrich call his
name 2 or 3 minutes after Bowyer left Shaw's office, he
turned and saw Aldrich stumbling toward him, with
Shaw close behind. Aldrich was rubbing his left shoulder
with his right hand, and he asked what was wrong. Al-
drich replied that Shaw had thrown him out of the
office. He asked if Aldrich was all right , and Aldrich re-
plied, "Well, I think so." "Let's get the grievance togeth-
er and get Shaw back in there and file the grievance, and
get out of this before somebody gets hurt."
Shaw testified that near the end of the meeting,
Bowyer and Aldrich still were yelling at McClain,
saying he was trying to change the rules , and Bowyer
was going into the shop to bring all the employees into
Shaw's office, and shut the shop down. Aldrich started
toward the door, but turned and started back in, still
talking to McClain, and went back and forth a couple of
times. Then:
And, at that time I got up out of my chair, went
over to where Mr. Aldrich was, and I put my right
hand on his right arm, my left hand in the middle of
his back, I said Harley, come with me, I have to do
something, and Harley turned and went out into the
hall, and I closed the door behind him.
Shaw said he did not go into the hall. He thought
Bowyer and Aldrich were going to handle the grievance
wrong, and he wanted Aldrich out of the office so the
supervisors could discuss the matter, which they did
after they were alone. When the first group of grievants
was brought in a few minutes after the incident, Aldrich
stood in the middle of the room, with a notebook in his
left hand and writing in it with his right hand. Aldrich
said nothing about having been ushered out of the office,
or being in pain, nor did he exhibit any restriction or im-
pairment of movement . Aldrich's appearance was the
same at all meetings of that day. Shaw denied ushering
Aldrich out of the office, or pushing him.
McGinnis testified that the clinic where he practices
medicine is used by Respondent for its employees. He
first saw Aldrich December 12. Aldrich told him a
fellow employee "locked his right arm around the pa-
tient's left arm, at the elbow, side to side, and then forc-
ibly pushed the arm up into fairly extreme abduction" re-
sulting in pain in the top of the left shoulder. Nothing
was said about the back being involved. He examined
Aldrich, but found no objective evidence of injury. Al-
drich complained of pain, and he concluded Aldrich
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"had suffered a minor strain of the left shoulder muscu-
lar. . . ." That conclusion "was based exclusively what
the patient was telling me verbally ..." Aldrich had no
restriction or impairment of motion. Muscle relaxant was
prescribed, and Aldrich was advised to use heat and
gentle massage . Aldrich was released for work the day
of his visit, December 12. On December 14 a different
medicine was prescribed, to permit taking it during work
hours. On December 19 Aldrich came to the office and
reported that he was pain free. He examined Aldrich,
and found the shoulder "totally benign, non-tender."
Edwards generally corroborated Shaw's testimony,
and stated:
A. As they were arguing back and forth, Doyle
Shaw got up out of his chair, and when he did, ev-
erybody got quiet. He walked around his desk, over
to Harley Aldnch, he put his right hand on Har-
ley's right bicep, just before he got there, about the
time he got to the edge of his desk he said, Harley,
I have to do something. And when he got there, he
put his hand on Harley's right arm, and his hand---
as he turned Harley a little bit, his hand on his
back, Harley didn't resist, he walked out the door,
Shaw stopped, I'd say, about parallel to the door,
his arm went out the door, but Doyle did not go
out of the room.
After the door was closed, Aldrich said loudly in the
hall "What kind of shit is this...."
Allen testified. Shaw got up from the desk at the meet-
ing, told Aldrich "I have to do something," put his right
hand on Aldrich's right arm, turned Aldrich around, and
took him to the door.
Bejarano testified° that he was present during a por-
tion of the December 9 meeting and witnessed at least
some of the incident involving Shaw and Aldrich. He
saw Shaw give Aldrich "a shove," and saw Shaw with
his hands on Aldrich, with his right arm under Aldrich's
right armpit. The latter then "was already facing the
door" leading to the hallway.
Discussion
The facts of the meeting are not entirely clear because
of considerable variance among the versions of witnesses.
However, two things are clear-Aldrich greatly exagger-
ated the incident, and Shaw greatly minimized it. Al-
drich contends that Shaw manhandled him so violently
he had to seek medical attention, and Shaw contends he
merely touched Aldrich as a guide to the door because
Shaw wanted to be alone with other supervisors to dis-
cuss the best method of handling the group grievance.
Neither version is accepted as accurate. Aldrich's ac-
count is suspect for several reasons. First, it is contra-
dicted by every other witness, in whole or in part. The
General Counsel's argument that the difference can be
attributed to the excitement of the moment is not persua-
sive. If Aldrich was assaulted in the manner he contends,
it does not seem likely there would be such variance
6 This testimony was heard provisionally, and counsel were requested
to address the question of its admissibility in their briefs It is concluded
that the testimony is admissible , and it has been taken into consideration
among the witnesses. Second, Aldrich's recitation was
not consistent, e.g., he testified in two ways about
Shaw's actions. At one point he said Shaw told him,
"You stay out of here." He later changed that testimony
and said Shaw told him, "Stay out here," apparently re-
ferring to the hallway, where Aldrich was standing.
Third, Aldrich's description of the incident given to Dr.
McGinnis was at some variance from his testimony. Fur-
ther, he said nothing to the doctor about having been hit
on the back. Aldnch had no restriction of movement or
physical impairment-at most, he told the doctor he had
some pain in his shoulder. The doctor likened that de-
scription to someone saying he had a headache. No ob-
jective signs were present. Certainly any pain he had was
not severe because he waited from Friday afternoon to
Monday morning to visit a doctor. Emergency treatment
was not requested or sought. Finally, only mild medica-
tion was prescribed, and Aldnch did not say that he fol-
lowed the doctor' s suggestion of heat and gentle massage
if the pain was bothersome. If Aldrich had shoulder pain,
and if it resulted from Shaw's action, the pain did not
prevent Aldrich from doing his regular work, and it was
not crippling.
However, Shaw's account of the incident also is sus-
pect. Clearly, he did more than just place a friendly hand
on Aldrich and lead him to the door. Shaw did not say
anything while McClain and others were arguing with
Bowyer and Aldrich. After 15 or 20 minutes of listening
to the argument, Shaw got up and approached Aldrich
as the latter was preparing to leave the office. The argu-
ment had been heated, repetitive, and fruitless and man-
agement representatives were in a tight spot by their ap-
parent adoption of a new rule concerning group griev-
ances. Shaw is credited in his explanation that those rep-
resentatives wanted to discuss the matter among them-
selves. Good judgment would have suggested a request
that Aldrich leave the room, but Shaw did not exercise
good judgment. He was annoyed and assisted Aldrich's
departure. In so doing, he laid hands on Aldrich and
treated him roughly. It was a sudden, unilateral act by
Shaw, which was not provoked by any move made by
Aldrich. Possibly Shaw's conduct is actionable in civil
law, but that is not the question Regardless of the
degree of any pain or suffering Aldrich may have in-
curred, the question of liability under the National Labor
Relations Act is the one that must be decided.
B. The Alleged 8(a)(1) Violation
The General Counsel argues that Shaw's actions were
so sudden, rough, and unexplained that any reasonable
person would find them threatening. Impliedly, the Gen-
eral Counsel seeks a conclusion that Shaw's actions per
se constituted a violation of the Act. The General Coun-
sel also notes, however, that a "very limited" exception
exists in the case of an employee picking a fight with an
employer's representative, citing H. O. Kline Transporta-
tion , 259 NLRB 299 (1981).
Counsel for Steelworkers argues that Shaw's conduct
was "inherently destructive" of Section 7 rights, and
"will necessarily have the effect of deterring employees
ASARCO INC. MISSION UNIT
and stewards from presenting grievances or engaging in
other protected activity for fear of retribution."
Counsel for Respondent argues that Aldrich merely
was escorted out of the office by Shaw, and was not as-
saulted. It is further argued that even if Shaw did assault
Aldrich, the act was not violated because there is no evi-
dence "to show that Aldrich was escorted from the
room because he had engaged in the exercise of Section
7 rights."
At the outset, it is noted that the incident occurred
within the context of the grievance machinery estab-
lished by Respondent and the Union. It may well be, as
Respondent argues, that the meeting when the incident
occurred was devoted to the manner of presenting group
grievances, rather than to grievances themselves, but that
is a distinction without a difference. The incident oc-
curred during a discussion concerning the protected ac-
tivity of Respondent's employees.
It is further noted at the outset that, although the
Board has stated on many occasions that a violation of
Section 8(a)(1) of the Act does not turn on an employer's
motive,' there is substantial authority for the proposition
that motive can be a compelling factor in finding or fail-
ing to find an 8(a)(1) violation.8 Moreover, in the
Board's recent Rossmore case,' it was made clear that, in
evaluating possible 8(a)(1) violations, the test is "whether
under all the circumstances the interrogation reasonably
tends to restrain, coerce, or interfere with rights guaran-
teed by the Act." Counsel for Steelworkers' argument
that Shaw's actions were "inherently destructive" of Sec-
tion 7 rights of employees, thus a violation of the Act,
begs the question. Rossmore involved an interrogation
rather than an assault, but the principle of law remains
the same-a violation of the Act can be found only on
review of all the circumstances involved. Indeed, all
three briefs acknowledge that 8(a)(1) assault cases can be
found on both sides of the argument-in some cases, no
violation of the Act was found. In others, violations
were found.
As noted supra, Respondent and the Union have a
long history of collective bargaining. There is nothing in
the record to show any prior litigation between the par-
ties , or any prior charges of unfair labor practices filed
against Respondent by the Union. Over the years union
representatives have filed and processed many hundreds
of grievances for employees. So far as the record shows,
Respondent and the Union have enjoyed an amicable re-
lationship. No representative of Respondent other than
Shaw was involved in the incident complained of. Shaw
is not a member of top management-he is a shop super-
visor. He does not supervise either Aldrich or Bowyer.
There is no indication that Shaw is an aggressive or abu-
sive person. To the contrary, Aldrich described him as a
"soft spoken" person, with whom he often worked on
grievances and with whom he got along "fairly well."
Other than on December 9, Aldrich agreed, Shaw's atti-
tude toward him never has been offensive or hostile. It is
See, e g , American Freightways Co, 124 NLRB 146, 147 (1959)
8 NLRB v Brown Food Stores, 380 U S 278 ( 1965), American Shipbuild-
ing Co v NLRB, 300 U S 300
9 Rossmore House, 269 NLRB 1176 (1984)
871
apparent that Shaw's conduct toward Aldrich on De-
cember 9 was atypical, was personal, and was of an iso-
lated nature. Aldrich testified that McClain stated apolo-
getically to him that the incident with Shaw was "not
the customary thing," with which statement Aldrich
agreed.
Prior to the meeting when the Shaw-Aldrich incident
occurred, Bowyer had talked with Edwards about a
group grievance; had talked with Edwards and Allen
about it; and had talked with McClain about it, with Al-
drich present. As of the last conversation, no grievance
had been presented-the only discussion was whether or
not a union representative alone could file a grievance
for a group of employees. After the incident in the after-
noon of December 9, Aldrich attended with Bowyer and
others three separate grievance meetings at which griev-
ances were presented in the company of small groups of
employees, concerning work schedules. Although Re-
spondent and the Union had disagreements and argu-
ments concerning the manner of presentation of the
grievances, there is no indication of any hostile or abu-
sive behavior by any person who attended any of the
foregoing meetings. Aldrich was present at all three
grievance presentations and took notes during discus-
sions. At no time did he complain about Shaw's conduct,
nor did he indicate any disability or restriction of move-
ment. Counsel for Steelworkers argues that because Al-
drich was "significantly subdued" after the incident, his
pursuit of the grievances showed his courage, rather than
showing that the incident was of no moment and thus
not actionable. Aside from the principle that an act's
effect on any reasonable person generally is the test,
rather than the success or failure of an act to coerce an
individual, which principle here is not in dispute, Aldrich
testified that the matter was of such limited concern to
him that he would not even have reported the incident,
if the pain in his shoulder had gone away. Clearly, so far
as Aldrich was concerned, it was shoulder pain, not a
possible statutory violation, that concerned him. He testi-
fied:
If indeed it was going to be a temporary thing,
like I said, if there was no pain in the couple of
hours there, then we wouldn't be here today.
His view of the incident is illustrated by the fact that,
only a few minutes after he left, or was ushered out of
Shaw's office, he rounded up some grievants and re-
turned to Shaw's office, and that routine was repeated
two more times within a couple of hours thereafter.
Respondent relies, in part, on H. O. Kline,10 wherein
an 8(a)(1) charge based on a management official hitting
an employee was dismissed. The General Counsel and
Steelworkers argue that H. O. Kline does not support
Respondent because in that case the employee provoked
the manager into attacking him. The administrative law
judge there observed, with Board concurrence, "But the
fact that a management official scuffles with a union
steward does not of itself prove a violation of the Act."
In H. O. Kline the employee, Ventura , was a union stew-
10 H O Kline Transportation, supra
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and who observed what he believed to be a contract vio-
lation. For the next 45 minutes or so he "badgered" the
official, Kline, about the matter. However, the adminis-
trative law judge found that the "badgering" did not
cause the later scuffle. Rather, he found, Kline pushed
Ventura and started the scuffle because he was provoked
into a fight by Ventura. Thus, the cause (motive) con-
trolled the issue.
In Dee Knitting Mills," also relied on by Respondent,
an officer of the Respondent was restrained and harassed
by pickets as he moved away to summon police. In
moving away he brushed a picket, and that action was
alleged to have been a violation of the Act. The adminis-
trative law judge there concluded that even though a
technical assault may have occurred, there was no viola-
tion of the Act.
In Huber & Huber Motor Express, 1 2 relied on by Re-
spondent, a manager (Morrow) and an employee (Neis-
tat) engaged in a heated argument about a nonunion
company doing work for the employer. Morrow asked
Neistat to leave the office, but Neistat refused to leave,
and continued to shout at Morrow. Morrow physically
assaulted Neistat, and threw him out of the office. The
administrative law judge stated, with Board concurrence,
"Under the circumstances, the critical inquiry is Re-
spondent's motivation, not the reasonableness or justifica-
tion for the force utilized." The administrative law judge
concluded, "There is no sufficient basis for concluding
that Morrow's conduct was prompted by any consider-
ations other than Neistat's refusal to comply with Mor-
row's direction that he leave his office." The part of the
complaint based on the assault was dismissed, with con-
currence of the Board.
The General Counsel and Steelworkers rely on several
cases, which have been reviewed, that enunciate general-
ly recognized principles governing Section 7 rights of
employees. The principle that an employer cannot threat-
en or physically assault an employee in order to interfere
with, restrain, or coerce an employee in the exercise of
those rights is not in dispute. However, determination of
interference, restraint, and coercion is governed by the
facts of each case. As noted above, not every physical
assault , even if committed during employee Section 7 ac-
tivity, constitutes a violation of the Act. In this case
there is no indication, however slight, that Shaw or any
other representative of Respondent had any desire or at-
tempted to interfere with or restrain the submission or
processing of grievances by employees. For reason not
shown at trial, Respondent decided that the presentation
of group grievances should be made with participation of
the employees involved and not through a single union
representative. If that decision was believed to have been
in violation of the contract, the grievance machinery of
the parties should have been invoked. That was not
done. Although there is some variance in the testimony,
it is apparent , and found , that: (a) Respondent wanted,
and so told Bowyer and Aldrich, personal presentation
by, or authorization of, individuals involved in a griev-
ance that involved several employees. (b) The Union re-
11 217 NLRB 650 (1975)
12 167 NLRB 632 (1967)
sisted that procedure and insisted on either group presen-
tation by union representatives, or bringing in all shop
employees, because, the Union contended, all those em-
ployees were, or could be, affected by the grievance. (c)
Respondent did not believe all shop employees properly
were grievants because all of them would not be affected
by the schedule in question. (d) Respondent and the
Union argued about the problem, and Bowyer and Al-
drich either expressly or impliedly told Respondent's
representative that if Respondent insisted on personal
presentations or authorizations, they would bring in all
shop employees, which would close down the shop. (e)
At the afternoon meeting of December 9, Respondent
and the Union were unable to resolve their differences.
They argued heatedly, and Bowyer and Aldrich repeat-
edly stated the Union's position for a period of 15 or 20
minutes. (f) When Bowyer left the office, Respondent's
representative believed he was going to bring in all shop
employees, thereby disrupting the work of the shop. (g)
Aldrich remained in the office after Bowyer left, and
was starting toward the door when Shaw got up from
his chair . (h) All Respondent 's representatives remained
in the room to discuss the matter after the door was
closed. (i) The immediate problem was solved by
Bowyer and Aldrich bringing in three small groups of
employees at different times.
The issue of whether or not Respondent's actions rela-
tive to group grievances were permissible under the con-
tract of the parties was not litigated. However, it is clear
that whether or not those actions legally were permissi-
ble, the argument at the meeting arose because Respond-
ent was concerned about the Union bringing in all shop
employees at the same time, thereby disrupting work. It
did not apse because Respondent wanted to prevent
grievances being filed or processed. Whether or not Re-
spondent legally was on sound ground relative to that
problem is irrelevant. There is no showing in this record
of antiunion animus on the part of Respondent generally,
or Shaw personally. The history of the parties is one of
amicable relations, and McClain expressed to Aldrich his
regret of Shaw's actions. Further, there is no reasonable
question concerning Respondent's receptivity to employ-
ees' grievances, because the only issue during the inci-
dent was the method of presenting group grievances-
not the grievances themselves. Obviously Respondent
did not foreclose grievances as such, because Bowyer
and Aldrich were back in Shaw's office within a few
minutes after the incident, presenting grievants and their
grievances. Although the fact does not resolve the issue,
only one rank-and-file employee witnessed the incident,
and that was Aldrich himself. Bowyer was in the hall
and saw nothing other than Aldrich's postincident ac-
tions. Both Aldrich and Bowyer were union representa-
tives, thus any residual effect of the incident on unit em-
ployees would be speculative. The question thus presents
itself-were Shaw's actions "inherently destructive" of
employees' Section 7 rights within the meaning of the
Act, as contended by counsel for Steelworkers?
The courts and the Board on many occasions have dis-
cussed conduct questioned as "inherently destructive" of
ASARCO INC MISSION UNIT
Section 7 rights. In Vesuvius Crucible,13 cited by counsel
for Steelworkers, the court stated:
The Supreme Court has stated that conduct is in-
herently destructive if it "carries with it 'unavoid-
able consequences which the employer not only
foresaw but which he must have intended' and thus
bears 'its own indicia of intent."' Great Dane, supra,
388 U.S. at 33, 87 S.Ct. at 1797 (quoting NLRB v.
Erie Resistor Corp., 373 U.S. 221, 228, 231, 83 S.Ct.
1139, 1145, 1147, 10 L.Ed.2d 308 (1963)). Generally,
those courts that have addressed the question have
described "inherently destructive" conduct as that
"with far reaching effects which would hinder
future bargaining , or conduct which discriminates
solely upon the basis of participation in strikes or
union activity." Portland Willamette Co. v. NLRB,
534 F.2d 1331, 1334 (9th Cir. 1976). Put another
way, "inherently destructive" conduct is "that
which creates visible and continuing obstacles to
the future exercise of employee rights." Inter-Colle-
giate Press, Graphic Arts Division v. NLRB, 486 F.2d
837, 845 (8th Cir. 1973) (citing Note, Lockouts-Em-
ployers' Lockout with Temporary Replacements Is an
Unfair Labor Practice, 85 Harv.L.Rev. 680, 686
(1972)), cert. denied, 416 U.S. 938, 94 S.Ct. 1939, 40
L.Ed.2d 288 (1974).
Shaw's conduct appears to have been rude and unnec-
essary, but it does not fall within the usual ambit of "in-
herently destructive" conduct as that conduct has been
described in Vesuvius Crucible and other cases . The con-
clusion sought by the complaint at first blush seems
is Vesuvius Crucible Co v NLRB, 668 F 2d 162, 169 (3d Cir 1981)
873
tempting. However, when all the circumstances are con-
sidered, that conclusion fades. Shaw's actions did not, as
a factual matter, interfere with, restrain, or coerce any
employee in the presentation or pursuit of grievances,
nor were those actions, viewed in context, inherently de-
structive of employees' Section 7 rights.
CONCLUSIONS OF LAW
1. Asarco Incorporated Mission Unit is, and at all
times material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No. 310;
International Union of Operating Engineers, Local 428,
AFL-CIO; International Brotherhood of Electrical
Workers, Local 570, AFL-CIO; and United Steelwork-
ers of America, AFL-CIO are, and at all times material
herein have been, labor organizations within the meaning
of Section 2(5) of the Act.
3. Respondent did not, as alleged, violate Section
8(a)(1) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The complaint is dismissed in its entirety.
14 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 pur-
poses