Asarco Inc. Mission Unit

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