Geo. A. Hormel & Co.

GEO A. HORMEL & CO Geo. A. Hormel & Company and James V. Guyette and Joseph T. Hansen, Trustee, UFCW Local P-9, affiliated with United Food and Commer- cial Workers International Union , AFL-CIO, CLC. Cases 18-CA-9722 and 18-CA-9737 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 22 September 1987 Administrative Law Judge Richard L. Denison issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition. The Respondent also filed cross-ex- ceptions and a supporting brief, and the General Counsel filed a reply 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. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 In agreeing with the judge that the complaint should be dismissed, we find it unnecessary to address the Respondent's contention that the judge improperly excluded expert testimony based on voice analysis Marlin O. Osthus, Esq , for the General Counsel. Kevin J. Kinney, Esq. (Krukowski & Costello, S. C), of Milwaukee, Wisconsin , and James W. Cavanaugh, Esq., of Austin, Minnesota, for the Respondent James V. Guyette, of Austin, Minnesota, pro se. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard in Minneapolis, Minnesota, on 12, 13, and 14 November 1986. The original charge in Case 18-CA-9722 was filed by James V. Guyette, an individ- ual, on 7 July 1986, alleging violations of Section 8(a)(1) and (3) of the Act by George A. Hormel & Company in that since about 8 January 1986 the Respondent allegedly terminated the employment of approximately 511 em- ployees at its Ottumwa, Iowa facility, and 16 other em- ployees at its Austin, Minnesota facility, because of their membership in and activities on behalf of the Union. Charge in Case 18-CA-9737, filed by Joseph T. Hansen, trustee for UFCW Local P-9, affiliated with United Food and Commercial Workers International Union, AFL-CIO, CLC, the Union, alleged that 16 employees 693 of the Respondent were discharged from the Company's Austin, Minnesota plant, in violation of Section 8(a)(1) and (3) of the Act These charges are an outgrowth of events surrounding the highly publicized 1985 strike against Hormel by the Union The 8(a)(3) allegations were formally dismissed, and an appeal was denied The complaint, issued 26 September 1986, alleged only that the Respondent violated Section 8(a)(1) of the Act by discharging Robert A Johnson about 23 January 1986, based on its mistaken belief that Johnson had engaged in misconduct during the course of Respondent's labor dispute with the Union The Re- spondent's answer denied the allegations of unfair labor practices alleged in the complaint On the entire record in the case, including my observation of the witnesses and consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Based on the allegations in paragraphs 2(a), (b), (c), and (d) and 3 of the consolidated complaint, I find, re- spectively, that the Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Local No. P-9, United Food and Commercial Work- ers Union, the Union, is, and has been at all times materi- al, a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A Introduction Robert A. Johnson was first employed by Hormel at its Austin, Minnesota plant on 29 May 1967. As of 17 August 1985, the date on which the Union's contract dis- pute with the Respondent precipitated a strike, Johnson was working as a box counter in the hog cut department under Foreman Gary Schammel. Johnson participated in numerous union and strike-related activities during the strike, among which were picketing, distributing strike benefit checks at the union hall, speaking engagements, and media publicity interviews concerning the Union's position in the strike. It is undisputed that on 23 September 1985, an uniden- tified telephone caller told a person on duty at the Austin Law Enforcement Center that the Respondent's products at four stores in Austin had been poisoned with strychnine. It is likewise undisputed that on 24 Septem- ber 1985, a caller told an official at the Minnesota Poison Control Center that strychnine had been injected into Respondent's products in 14 stores in the Minneapolis-St Paul area In accordance with the normal procedures of these agencies, both of these telephone calls were taped. A police investigation ensued, during the course of which these tapes were played to groups of Respondent's supervisors Three supervisors who had known and worked with Robert Johnson identified Johnson as the caller. Johnson denied making the calls About 23 Janu- ary 1986, Johnson was terminated by the Respondent for strike-related misconduct. The Respondent maintains and 287 NLRB No. 70 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the General Counsel concedes that the Respondent's ter- mination of Johnson was based solely on a good-faith belief that Johnson was the person who made the tele- phone calls The issue for consideration was whether the General Counsel had established that the belief on which the Respondent acted was mistaken, i.e., that Johnson was not the caller, and thus the Respondent discharged Johnson in the course of protected concerted activity, in violation of Section 8(a)(l) of the Act. B. The Evidence Concerning Johnson's Activities on 23 September 1985 In September 1979, Robert Johnson sustained a work- related injury to his back which required spinal fusion surgery. Since that time it has been necessary for John- son to have periodic examinations, which have been per- formed by Dr. Paul Arneson at his office in Mankato, Minnesota, approximately 75 miles from Austin. Johnson had an appointment with Dr. Arneson for 9:30 a.m. on 23 September 1985. At 9:32 a.m. that day, the Austin Law Enforcement Center received the terroristic tele- phone call claiming that products of the Respondent had been laced with strychnine. Johnson testified that he ar- rived at the doctor's office shortly before 9:30 a.m., signed the sign-in sheet, had the receptionist fill out a travel voucher, and waited in the reception room until about 10 a.m , when he was called for his examination. Dr. Arneson's office records for that date establish that Johnson was the fifth patient to arrive that morning. The time of Johnson's arrival is important to the validity of his alibi, and thus, together with other evidence concern- ing whether he had the opportunity to make the tele- phone call, was the subject of much scrutiny at the hear- ing. Jean Keenan and Judy Murilla, each of whom had 9 a.m. appointments that day, according to Dr. Arneson's records, were not called to testify. The third patient to arrive was Merlyn Bulson who had an appointment for 9:30 a.m. Bulson was a precise witness, who gave short and direct answers with self-as- surance. Bulson had formerly lived in Austin, and recog- nized Johnson as a person who had lived about seven blocks from where Bulson resided . Bulson arrived at Dr. Arneson's office about 5 minutes after 9 a in., and sat in the waiting room until called to an examination room at approximately 9:30 a.m He testified that there were "a couple of ladies" in the waiting room with him while he was there, but that he saw no males during the entire time he was in the waiting room. He testified that he was called to an examination room "very, very close" to 9:30 a.m., which fact he remembered because he was seldom called for examination anywhere near the time of his ap- pointment . He left the doctor's office shortly after 10 o'clock. The fourth patient was Gwendolyn Sorbel, who had a 9 a.m. appointment. She entered Dr. Arneson's office at approximately 9:05 a.m. She waited about 40 minutes before being called to an examination room. The fact that Sorbel had another engagement following her medi- cal appointment caused her to frequently look at her watch as she read a book. Thus, she noticed that Robert Johnson arrived at 9:20 or 925 a.m. She continued read- ing until she was summoned for examination. When asked if Johnson left the reception area from the time of his arrival until the time when she left the waiting room, she answered "Not that I know of," but readily conced- ed, that she had not been observant while reading, a candid admission emphasized by her inability to remem- ber where Johnson sat in the waiting room. She exited Dr. Arneson's office at 12:45 p.m. Sarah Gemlo, the sixth patient of the morning, was scheduled to report at 9.45 a.m. She remembered that the digital clock in her automobile registered 9:37 a.m. as she exited her car at the doctor's office. She testified that she had no recollection of seeing Johnson in the waiting room. Other witnesses were called to give evidence concern- ing Johnson's opportunity or lack of opportunity to make the 23 September call. Brian McAlister, an Austin police department investigator, testified that as part of his investigation of the 23 September 1985 telephone call, he visited Mankato, where he attempted to locate the public pay telephones near Dr. Arneson's office. He lo- cated one, about a mile away, in the parking lot of a shopping center, but his investigation did not disclose any long-distance phone calls to Austin, Minnesota, during the time period in question, from any nearby public phone. On cross-examination McAlister testified that he conducted no investigation of calls made from nonpay telephones in that area, telephone calls made from nonpay telephones to Austin, Minnesota, at the time in question, or the effect of third party billing on public or nonpublic telephone calls. Shirley Christensen, a supervisor in the accounting de- partment of the Mankato Citizens Telephone Company, provided, pursuant to subpoena, a list of 48 public pay telephones within a mile of Dr.- Arneson's office. Chris- tensen also supplied a telephone company record disclos- ing all long-distance telephone calls from public pay phones that were made between 9:15 and 9:45 a.m. on 23 September 1985. Christensen affirmed that this record disclosed that at approximately 9:30 a.m that day, a di- rectory assistance call was placed to Austin's area code. Christensen also admitted that the public pay phone records kept by the telephone company would not record any collect or third party billing calls. She also disclosed that no verification by the operator is required before a third party billing call is placed. These admissions by Christensen, while testifying as a witness for the General Counsel, were corroborated and further explained by the testimony of Barbara Ellis, the chief operator for the Mankato Citizens Telephone Com- pany. She described in detail the procedures whereby her company, processed third party billing calls. Since Mankato and Austin are both located within area code 507, the caller would simply dial zero plus the telephone number. An operator would then come on the line and obtain the billing details for the call. However, when such a call is placed from a telephone which is not coin- operated, the third party number would be billed for the call without verification, and no record would exist. Thus, for example, she testified that if such a call had been placed from a phone in Dr. Arneson's office, it would not have been reflected on Dr. Arneson's tele- GEO. A. HORMEL & CO. phone bill . Furthermore, Ellis testified that by telling the operator that the call is necessitated by an emergency verification can be avoided, since operators are instruct- ed to accept such assurances, and thus it is possible to make a third party billing call even from a coin-operated phone without any record being maintained other than the billing information attributed to the number to which the call was billed. Finally, Marilyn Mullenberg , Dr. Arneson's registered nurse and office manager, testified that a telephone was located in the interview room and each of the four exam- ination rooms . All of these telephones are connected to direct outside lines, which do not require either switch- board assistance or the dialing of an outlet number. She further testified that it is Dr Arneson's policy to permit patients to make local calls or long-distance collect or credit card calls. Patients are called to unoccupied exam- ination rooms in the order of their arrival . The door to the room is shut, a folder with a chart is placed on the outside of the door, and the patient remains inside until the doctor arrives at the room for the examination C. The Evidence Concerning Johnson's Activities on 24 September 1985 The toll free number of the State of Minnesota Poison Control Center is set forth on the inside front cover of the Austin Telephone Directory. Calls to toll free num- bers are not registered on any telephone bill. At 12:06 p.m on 24 September 1985, an unidentified caller to -the Center asserted that strychnine had been injected in products of the Respondent at 14 stores in the Minneapo- lis-St. Paul area. Robert Johnson denied that he was the caller. He testified that at the time the call was made he was outside in front of his house occupied with the chore of removing grass from his driveway, sidewalk, and curb by using a hose. His wife, Lucy Johnson, testi- fied that, in accordance with her usual workday routine, she left her place of work about 11:45 a.m . for lunch at home. After stopping to make a bank deposit, she arrived home at "approximately 12 noon," when she observed her husband flushing the storm gutter in front of the house. Lucy Johnson testified that she went immediately to the kitchen, where she remained preparing for the evening meal. She stated that she observed her husband from the kitchen window in the front of the house from the time she arrived until he entered for lunch around 12:40 p.m. She testified that at no time did he leave the premises . Although the nearest pay telephone is located five blocks from the house, the Johnson home contains four telephones. One is located in the kitchen, three are positioned at various locations on the second floor. Lucy Johnson conceded that, since she remained in the kitch- en, she was not in a position to observe whether her hus- band used one of the second floor telephones . She admit- ted that she did not continuously observe his outside ac- tivities while she was working in the kitchen, but, never- theless, concluded that he could not have entered the house without her hearing him do so. There were no other witnesses to Johnson's conduct during the time in question. 695 D. The Evidence Concerning the Identity of the 23 and 24 September 1985 Caller Police Captain Gordon Bjorgo, a 17-year veteran of the Austin police department , testified concerning the relevant details of the police investigation of the tele- phone calls in question Under Bjorgo's supervision, cas- sette tape copies were made of the calls from the masters provided by the police and poison control centers Then, pursuant to arrangements with Hormel's management, he played the tapes to groups of Hormel 's Austin employ- ees Each group contained between 10 and 15 persons According to Bjorgo, at the time of these meetings there were no suspects, and none were suggested to the assem- bled workers His only instructions to each group were to contact him in a circumspect manner if, after hearing the tapes, they recognized the voice. Certain of the em- ployees identified Robert Johnson as the caller. Of these, three testified at the hearing. Harry Boyken, the Compa- ny's administrator of workmen's compensation and dis- ability, has had numerous contacts with Johnson in con- nection with his back injury, and for a 6-month period in 1979 when he was Johnson's foreman in the freezer area. His contacts with Johnson included telephone conversa- tions. Boyken testified that between 1982 and September 1985 he had almost weekly contacts with Robert John- son. After listening to Bjorgo play the tape in a confer- ence room along with 15 or 16 other members of the Hormel management, he later privately told Bjorgo that the voice sounded like that of Robert Johnson. Bjorgo asked if he was quite sure, and Boyken replied that he was as sure as he could be. He also said , "It's not some- thing I would bet my life on but I would bet a week's salary " Roy Verret, a production foreman at Hormel, also identified Johnson as the caller after listening to the tape at one of Captain Bjorgo's group meetings in the confer- ence room. Verret worked as a relief foreman in all the various departments of the plant, according to where he was needed In the course of his travels through the Re- spondent's operations , he became acquainted with Robert Johnson while working with him for periods of up to a month at a time during the years 1977 through 1981. Verret described the various operations in which from time to time he had found it necessary to talk with John- son In a private talk after the conclusion of the group meeting, Verret told Bjorgo about his conclusion. Jerry Adwell, a supervisor in the hog cut department, knew Johnson from having worked with him in 1982, the spring of 1984, and the summer of 1985. Adwell also attended one of Bjorgo's tape playing sessions along with 10 or 15 other Hormel employees . After the tape had been played twice, in accordance with the procedure previously described, the meeting adjourned. He then proceeded to discuss what had occurred at the meeting with Jim Friedlund, a foreman in the palletizing area on the lower cut floor. It was only after Friedlund re- marked that "This kind of thing was type of activity [I] would expect from people who were working on the palletizing loop at that time," that Adwell then ap- 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proached Captain Bjorgo and identified Robert Johnson as the caller.' At the conclusion of the police investigation, Robert Johnson was arrested and charged with two felony counts of making terroristic threats as prohibited by a Minnesota statute. This event, and its associated recall of Respondent's products valued in excess of $40,000, re- sulted in nationwide publicity. On 23 January 1986, Johnson was terminated by the Company for "strike re- lated misconduct." As of the date of the hearing in the instant case, Johnson had not yet been tried. Following his arrest, in accordance with -Minnesota law, Johnson was required by court order to submit to the police a taped example of his voice repeating the words used by the terroristic caller. Copies of these re- cordings were also furnished to Johnson. Both the police, and Johnson, pursuant to his attorney's advice, submitted these tapes together with copies of the tapes of the actual terroristic calls to specialists in various forms of voice analysis.2 The remaining evidence, concerning whether Johnson is the terroristic caller, appears in the form of testimony by Deputy Sheriff Glenn Farnum, an old friend of John- son's; Ronald Howard, a friend since high school days and a fellow striker; and Carmel Taylor, a friend of Johnson's wife, regular social acquaintance, and wife of a fellow striker. Each of these persons, at Johnson's re- quest, listened to the tapes of the telephone calls, at dif- ferent times, in Johnson's presence, and concluded' that Johnson was not the caller.3 E. Discussion and Concluding Findings At the outset of the hearing the General Counsel con- ceded that the Respondent discharged Johnson pursuant to an honest belief that he was the person that made the 23 and 24 September calls. This position is reiterated on page 3 of counsel for , the General Counsel's brief The case of Rubin Bros. Footwear, 99 NLRB 610, 611 (1952), enunciated the principles that I must follow in assessing the evidence described in earlier portions of this deci- sion. Under the circumstances described , I place little reliance on Adwell's identification ' 2 The findings and conclusions in this Decision render unnecessary any detailed discussion of my ruling at the hearing , excluding the expert opin- ion testimony proffered by Respondent concerning the identity of the 23 and 24 September caller, based on voice analysis As recognized by all parties following extensive research, the specific issue of the admissibility of this type of evidence in proceedings before the Board is one of first impression The record contains a detailed description of the method em- ployed by Dr Oscar Tosi, an acknowledged expert in this field, and the cross-examination in which the General Counsel challenged this method and voice analysis in general on grounds of subjectivity and lack of reli- ability I sustained counsel for General Counsel's objection to the expert opinion testimony Respondent's request for permission to file a special appeal of my exclusionary ruling was denied by the Board pending this Decision 8 After carefully observing , listening to , and analyzing the testimony of these three witnesses , I conclude that they were strongly biased in John- son's favor, and that, especially considering the conditions under which they listened to the tapes, they were strongly influenced to reach a favor- able conclusion Therefore, under all the circumstances presented, I do not rely on their testimony even though I am sure that each of these wit- nesses sincerely believed he or she was being objective We are now of the opinion that the honest belief of an employer that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate such employees, unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct. The employer then, of course, may rebut the General Counsel's case with evidence that the unlawful conduct actually did occur. At all times, the burden of proving discrimination is that of the General Counsel. Id. at 611 The rule of the Rubin Bros. case was reiterated by the Board in Burnup & Sims, 137 NLRB 766 (1963), and ap- proved, upon review of that'case, by the United States Supreme Court. NLRB v. Burnup & Sims, 379 U.S. 21 (1964). These principles remain controlling. Coca-Cola Bottling Co., 274 NLRB 1341 (1985), Western-Pacific Con- struction, 272 NLRB 1393 (1984). Moreover, it is clear that despite the considerations involved in examining the various shifts in the burden of going forward with evi- dence which may occur during the course of a proceed- ing, as in the instant case, the burden of establishing a violation of the Act by a preponderance of the evidence never shifts from the General Counsel. I am not persuad- ed that the General Counsel has satisfied this obligation in this instance, nor that he has clearly demonstrated that the honest belief on which the Respondent admittedly acted, was mistaken. A close examination of the record reveals that, while there is some evidence suggesting the possibility that Johnson might not be the 24 September caller, his alibi, i e., that he was at his doctor's office and could not have made the phone call, is vulnerable to the point where it is really no alibi at all. For example, it is conclusively es- tablished that the 24 September telephone message was received at 9 32 a.m. Sarah Gemlo credibly testified that she arrived at Dr. Arneson's office at 9 37 a m. by her automobile clock All other times relating to this incident are, by the witnesses' admissions, approximate. Johnson's testimony that he arrived "a little bit" before 9:30 a in. is, likewise, only an estimate. Thus, even assuming, in this instance, that all witnesses gave their honest and best recollection concerning the time of Johnson's arrival, an error of only 1 or 2 minutes would have allowed suffi- cient time for the call to have been made from one of the numerous telephones in close proximity to Dr. Arneson's office. Furthermore, each of Dr. Arneson's examining rooms and the interview room has a telephone connected di- rectly' to outside lines from which, in view of Dr. Arne- son's liberal telephone use policy, the call in issue could easily have been made without any resulting documenta- tion In addition, no witness actually observed whether Johnson remained in the waiting room, as he claims, until being called for examination Sorbel testified that she was reading, and did not observe Johnson after he entered. Both Gemlo and Bulson did not see Johnson at all. Moreover, the testimony of Chief Operator Ellis, GEO A HORMEL & CO 697 confirmed by Supervisor Christensen , establishes that the terroristic call could have been made from a pay tele- phone without any record of the call having been cre- ated. The 24 September call to the State of Minnesota Poison Control Center was made at 12.06 p .m. That agency has a "toll free" number. Lucy Johnson , Robert Johnson's wife, is his only supporting witness with re- spect to this phase of the case. Even if one discounts her obvious, and understandable, bias, and accepts her testi- mony as accurate , Johnson is not absolved Her testimo- ny that she arrived home at "approximately" 12 noon, that she did not watch her husband the entire time there- after, and that their home contains three upstairs tele- phones, virtually destroys the corroborative value of her testimony. I am not impressed by Johnson's demeanor as a witness, or, more importantly , by his assertion that he spent in excess of 40 minutes, spanning the critical period, continuously hosing the driveway , walk, and gutter in front of his house. Nor am I persuaded by the testimony of Farnum, Howard, and Taylor, all close friends of Johnson and his wife Although I am convinced of their sincerity in de- siring to assist Johnson, I find that they were strongly in- fluenced by the fact that they were summoned to his home to hear the tapes in Johnson 's presence. On the other hand, I can find no significant reason to discredit the testimony of Boyken and Verret, who positively identified Johnson 's voice, under conditions carefully de- signed to protect the objectivity of the identification process I find and conclude that the General Counsel has not proved by a preponderance of the evidence that Robert Johnson was not the 23 and 24 September 1985 caller, and that the Respondent violated Section 8 (a)(1) of the Act when it discharged Robert Johnson pursuant to an admittedly honest belief that he had engaged in the con- duct attributed to him. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The General Counsel has not established by a pre- ponderance of the evidence, as required by Section 10(c) of the Act, that the Respondent discharged Robert A. Johnson in violation of Section 8(a)(1) of the Act, as al- leged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The complaint is dismissed. 4 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