COLOGNE, Acting P. J. I must respectfully dissent. I view this as another example of the Board’s reaching beyond the evidence to impose sanctions on the agricultural employer. I am well aware of the standard of review this court must observe in addressing the issues, but I will restate them in the manner I have done more than once in ALRB cases.
The findings of the Board as to questions of fact are conclusive if supported by substantial evidence on the record considered as a whole (Lab. Code, § 1160.8). The standard of review by this court is met if there is relevant evidence in the record which a reasonable mind might accept in [337]support of the findings (Kawano, Inc. v. Agricultural Labor Relations Bd. (1980) 106 Cal.App.3d 937, 943 [165 Cal.Rptr. 492]). The United States Supreme Court gives us further guidance in Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 487-488 [95 L.Ed. 456, 467, 71 S.Ct. 456, 464-465]. “Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. . . .
“To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.”
It has also been phrased this way: “This ‘limited’ scope of review does not, however, require us to abdicate our responsibility to the extent of merely ‘rubber-stamping’ our affirmance of the Board’s decision when, after full review of the record, including the evidence opposed to the Board’s views, we are unable conscientiously to conclude that the evidence supporting such decision is substantial.” (N. L. R. B. v. O. A. Fuller Super Markets, Inc. (5th Cir. 1967) 374 F.2d 197, 200; Universal Camera Corp. v. Labor Bd., supra, 340 U.S. 474, 488 [95 L.Ed. 456, 467].)
The court is to be guided in its review of Board orders by decisions under the National Labor Relations Act (29 U.S.C.A. § 151 et seq.), on which the Agricultural Labor Relations Act was modeled (Lab. Code, § 1148).
[338]“Substantial evidence” does not mean “any evidence” (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 930-931 [156 Cal.Rptr. 152]), and is not established by mere suspicions of unlawful motivation (Lozano Enterprises v. N. L. R. B. (9th Cir. 1966) 357 F.2d 500, 503). General counsel of the Board has the burden of proving unlawful conduct, and such conduct is not lightly to be inferred (N. L. R. B. v. Federal Pacific Electric Company (5th Cir. 1971) 441 F.2d 765, 770).
I must reluctantly repeat the facts as I feel the majority’s view of the evidence omits some very salient matters which cast a different light when we view the whole record in accord with the foregoing principles.
Lewis Gardens, Inc., a nursery with locations in both Vista and Whittier, was owned by Hubert and Helen Lewis. It specialized in azaleas, and also raised and sold a variety of greenhouse plants. It is not the usual agricultural enterprise with a high level of seasonal hiring at harvest time but rather, like most individual businesses, has a relatively constant level of employment. Although the Lewises had operated the nursery for many years, by the Fall of 1978 the business was failing. The number of employees at the Vista location had dwindled from 46 in March 1978 to 15 in October 1978. When the Lewises sold the nursery there were only six employees left. It lacked responsible management and the $1 million inventory of plants was poorly cared for, diseased and in jeopardy of being totally lost. The type of plant production was vastly over diversified.
Babbitt Engineering is a corporation engaged in the business of consulting and design with regard to heavy tube mills. All of the corporation’s stock is owned by Charles Babbitt. In December of 1978 Virginia Babbitt, Charles’ wife and Babbitt’s vice-president, first looked over the Lewis’ property. Mrs. Babbitt was searching for a business which could be “turned around,” and had heard Lewis Gardens might be such a business.
January 21, 1979, Babbitt Engineering entered into a sales agreement with the Lewises for the purchase of the business. Under the terms of sale, Babbitt acquired all of the common stock of Lewis Gardens, it being understood the real property in Whittier had been sold to a developer and was no longer an asset of the corporation.
With the change in corporate ownership came a change in corporate officers—Mrs. Babbitt became president of Lewis Gardens, Mr. Babbitt vice president, and Marsha laceo secretary. These three were also the only officers of Babbitt Engineering, where Mr. Babbitt is president, Mrs. Babbitt vice president, and laceo secretary. Mrs. Babbitt, by all accounts, actually [339]ran the nursery without assistance from the others. Mr. Babbitt played no role in managing the nursery business.
On July 9, 1979, a certificate of amendment was filed with the Secretary of State, changing the name of the nursery to San Marcos Greenhouses, Inc. No other changes were made in the structure of the corporation, but substantial changes were made in the operation and management. Prior to the sale, the Whittier plant was the main sales point with sales to flower shops, retail plant stores and supermarkets. This part of the business was closed down completely. The Vista plant which had been only a location for “back door” sales to retailers became the only point of operation. A new sales manager was hired and he initiated a number of changes in the operation. For example, the number of varieties of plants being produced was limited, sales methods were completely changed, staff realigned, the diseased plants were removed and the stock generally upgraded. About all that could be said of the continuity of the business was it was still a corporation and was in the business of growing some kind of greenhouse plants.
Around February of 1979, after Babbitt had bought Lewis Gardens but before its name was legally changed, events took place at the nursery which led to the filing of this unfair labor practice proceeding. The union requested a meeting to negotiate the wage contract and Mrs. Babbitt, as president of Lewis, initially ignored it, assuming she was a new employer not bound to negotiate with the UFW which had been certified as the bargaining agent to Lewis Gardens. Lewis prevailed on Mrs. Babbitt to consult an attorney, which she did, and then notified UFW she would not negotiate. UFW filed these charges and the Board issued a complaint naming Babbitt as respondent. In its answer, Babbitt denied the charges, and also denied it was engaged in agriculture, claiming instead its “subsidiary corporation, San Marcos Greenhouses,” was so engaged. In a later amendment to the complaint San Marcos was added as a corespondent in the case. At all stages of these proceedings, attorneys originally hired by Babbitt handled the representation of both Babbitt and San Marcos.
Discussion
Babbitt as Alter Ego or Successor Employer
The majority opinion treats the matter of alter ego lightly in its final footnote, but I cannot ignore the issue. The Board’s finding exemplifies how it reaches conclusions not supported by the record; moreover, it provides the means whereby the engineering firm is drawn into the fray and made a party to these proceedings. Assuming San Marcos was a successor employ[340]er, there is no evidence beyond Babbitt’s ownership of the shares of San Marcos and similarity, though not identity, of corporate officers to warrant application of the alter ego doctrine to Babbitt. The evidence is Mr. Babbitt and Babbitt took no part in the management of San Marcos. The San Marcos operation was entirely undertaken by Mrs. Babbitt as president of San Marcos. Nor is there any evidence of Babbitt’s “assuming control of [San Marcos’ agricultural] operations” (see San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 874, 886 [176 Cal.Rptr. 768, 633 P.2d 964]), thus an essential element of the successor employer doctrine cannot be shown in Babbitt’s case.
In his decision, the ALO found: “Babbitt Engineering as the sole owner of Lewis Gardens, later renamed San Marcos Greenhouses, Inc., is the alter ego of its subsidiary and properly named as Co-Respondent. (Hood Industries, Inc., 248 NLRB No. 89 (1980).”
This is the ALO’s only comment on the issue; it is not supported by any findings, nor discussed anywhere else in the decision. Although challenged in the exceptions to the ALO’s decision, the Board does not mention this finding (other than to generally affirm the ALO’s findings). In its petition for review Babbitt contends the ALO’s alter ego finding is not supported by substantial evidence, and in any case cannot stand as the ALO did not make any of the findings required before the alter ego doctrine can be invoked.
At oral argument, counsel for Babbitt made clear it was not attempting to hide behind this theory, but he gave no indication he would abandon that issue. Factually, the situation here does not involve a change in corporate form to avoid a remedial order. The only change involved was in the name of the same corporate entity, “Lewis Gardens, Inc.” to “San Marcos Greenhouses, Inc.” “[T]he rule is well settled in this state that the mere fact one or two individuals or corporations own all of the stock of another corporation is not of itself sufficient to cause the courts to disregard the corporate entity of the last corporation and to treat it as the alter ego of the individual or corporation that owns its stock. In addition it must be shown that there is such a unity of interest and ownership that the individuality of such corporation and the owner or owners of its stock has ceased; and it must further appear that the observance of the fiction of separate existence would, under the circumstances, sanction a fraud or promote injustice. Bad faith in one form or another must be shown before the court may disregard the fiction of separate corporate existence.” (Cleaning & Co. v. Hollywood Service (1932) 217 Cal. 124, 129 [17 P.2d 709]).
The authorities all agree the test for alter ego, or “piercing the corporate veil,” is two-pronged. Both a unity of interest and ownership between the [341]corporations, and some inequity, fraud, or frustration of statutory purpose which would result from the observance of the corporations’ separate identities, must be shown (Penntech Papers, Inc. v. N. L. R. B. (1st Cir. 1983) 706 F.2d 18, 24; 6 Witkin, Summary of Cal. Law (8th ed. 1974) Corporations, § 6, p. 4318; 1 Fletcher, Cyclopedia of Corporations (1982 pocket supp.) § 41, p. 29). Neither the ALO’s findings nor the record in this case satisfy these requirements.
The only indicia of a unity of interest and ownership between Babbitt and San Marcos mentioned by the ALO is Babbitt’s ownership of all of the stock of San Marcos. The only other evidence of such a unity we can find between the two corporations is the shared corporate officers, though the holders of the top two positions are distinctively different. These two facts are not by themselves enough to support a finding of alter ego (19 Am.Jur.2d (1965) Corporations, § 716, pp. 216-217).
The record reveals one other fact which might suggest a unity of interest and ownership—Babbitt and San Marcos shared representation by a single firm of attorneys who defended all of the charges in the case.1 Although the law firm never expressly claimed to be representing only Babbitt, it did effectively represent both parties. While use of the same attorneys might suggest a common interest, it does not satisfy the tests for alter ego established by the NLRB and ALRB.
The alter ego analysis involves the same factors as the test for a “single employer” under the N.L.R.A., only the finding of alter ego also requires a finding of some form of bad faith motive (Carpenters Local U. No. 1846 v. Pratt-Farnsworth (5th Cir. 1982) 690 F.2d 489, 507-508). The NLRB determines whether two corporations are a “single employer” for the purposes of the act by looking for: “(a) a present unity of interest, (b) common ownership and control, (c) interdependence of operations, and (d) common direction of labor relations policies.” (Morris, The Developing Labor Law (1971) p. 768.)
The ALRB’s test for a “single employer” is similar: “Because patterns of ownership and management are so varied and fluid, we are reluctant to [342]announce any mechanical rule in these cases; but we will look to such factors as similarity of the operations, interchange of employees, common management, common labor relations policy, and common ownership.” (Louis Delfino Co. (1977) 3 ALRB No. 2, p. 3.)
The ALO’s finding only addresses one of the factors from either of the tests, common ownership. The evidence in the record only suggests one other possible factor—common control (the shared corporate officers). There is nothing in the record to suggest the engineering company had any role or interest in the operation of the nursery. The ALO made it clear it was Mrs. Babbitt who took firm control of the operation of San Marcos as its president and there was no evidence she had any role in the engineering business. There was no showing of any similarity in operations between Babbitt, a heavy tube mill designer, and San Marcos, a nursery. No evidence was introduced of any interchange of employees between Babbitt and the nursery. No common accounting or management of the two corporations was shown. There was no evidence of any common labor relations policy. “The standards for the application of alter ego principles are high, and the imposition of liability notwithstanding the corporate shield is to be exercised reluctantly and cautiously.” (1 Fletcher, Cyclopedia of Corporations (1982 pocket supp.) § 41.1, p. 33.)
The finding of the ALO clearly does not support the invocation of the alter ego doctrine. Further, the evidence in the record also would not appear to show such unity of interest and ownership as is necessary for the doctrine’s use. The first prong of the test for the alter ego doctrine was, therefore, not satisfied.
Neither the ALO nor the Board give any consideration to the second requirement for piercing the corporate veil—the occurrence of some inequity, fraud, or frustration of statutory purpose if the corporate structure is not disregarded. In this requirement lies the purpose for the doctrine. “The alter ego doctrine is applied to avoid inequitable results not to eliminate the consequences of corporate operations.” (Aladdin Oil Corp. v. Perluss (1964) 230 Cal.App.2d 603, 614 [41 Cal.Rptr. 239].) A search of the record in this case, however, reveals no inequity or frustration of statutory policy which would result if the doctrine were not used; indeed, one can only speculate as to the ALO’s reason for applying it.
To summarize, it becomes apparent the record is devoid of any evidence, let alone substantial evidence, upon which to premise the “alter ego” finding. This being the case, the ALO’s “alter ego” finding should be reversed. Babbitt’s separate corporate existence should be recognized, and as it played [343]no role in the unfair labor practices at issue in this case, either as alter ego or successor employer, and regardless of the holding as to San Marcos, Babbitt should be dismissed as a party.
Discriminatory Discharges
Along with the campaign to refuse to hire former Lewis Gardens employees, the employer here was additionally charged with illegally firing three of its employees who also had worked at Lewis Gardens. The ALO found the three, Mary Hickey, Salvador De Casas and John Martinez, were discharged because of their past employment at Lewis Gardens, and because of their union activity while there. The Board affirmed this finding.
Section 1153, subdivision (c) of the act makes it an unfair labor practice for an employer to discriminate “in regard to the hiring or tenure of employment, or any term or condition of employment, to encourage or discourage membership in any labor organization. ” The Board has held: “To establish a prima facie case of discriminatory discharge in violation of Section 1153(c) and (a) of the Act, the General Counsel is obliged to prove by a preponderance of the evidence that the employee was engaged in union activity, . . . and that there was some connection or causal relationship between the union activity and the discharge.” (Jackson & Perkins Rose Co. (1979) 5 ALRB No. 20, p. 5.)
Once general counsel has shown an employee’s union activities were a motivating factor in the employer’s decision to discharge the employee, the burden shifts to the employer to prove the discharge would have occurred regardless of the union activity. If the employer fails to carry this burden, and the employee would have been retained “but for” his union membership, or his performance of other protected activities, the discharge is an unfair labor practice. (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 [175 Cal.Rptr. 626, 631 P.2d 60]; Wright Line (1980) 251 N. L. R. B. 1083 enforced 662 F.2d 899 (1st Cir. 1981).)
With these standards for review in mind, the three discharges will be examined individually.
A. Mary Hickey
Mrs. Hickey had worked in the office at Lewis Gardens from August 1977 until November 1978. Her duties there included keeping the payroll, maintaining personnel records, writing out sales slips, making up deposits, and [344]taking incoming phone calls. At the time of the UFW organizational drive at Lewis Gardens, Hickey had been elected secretary of the organizing committee.
Hickey contacted Mrs. Babbitt regarding employment soon after Babbitt bought the nursery. Mrs. Babbitt hired her, and she began work in the office on February 2. February 14, less than two weeks after she started, Hickey was let go by Mrs. Babbitt. According to Mrs. Babbitt, Hickey voluntarily quit, saying she felt “uncomfortable” in the position. Hickey denies this and claims she was fired by Mrs. Babbitt. Hickey was given a pink slip by Mrs. Babbitt which gave as the reason for her discharge: “Reorganization within company.”
The ALO credited Hickey’s version of the discharge. As this credibility resolution is neither incredible on its face nor inherently improbable, it must be accepted by this court. The ALO also found Hickey was discharged either because of her union activities while at Lewis Gardens or solely because she was a former Lewis Gardens employee, in violation of the Act. Substantial evidence at least supports the first basis.
San Marcos attacks the ALO’s holding on two grounds. First, it argues a finding Mrs. Babbitt discharged Hickey because of her union activities at Lewis Gardens cannot stand, as there was no showing Mrs. Babbitt had any knowledge of Hickey’s union activity.
The ALO’s finding in this regard was: “Mrs. Babbitt was aware of Mary’s previous employment and had discussed her with Mrs. Lewis who criticized her as a ‘busybody’ and a ‘troublemaker.’ Mrs. Babbitt did not admit awareness of union sympathy or activity on Mary’s part, but given Mrs. Lewis propensity to criticism and gossip, I find it hard to believe that the ambiguous, almost euphemistic, term ‘troublemaker’ was not understood or actually connected with union activities.”
From this, San Marcos argues, it is clear the ALO has based his finding Mrs. Babbitt had knowledge of Hickey’s union activity on mere suspicion or surmise—he guessed at what Mrs. Lewis was likely to have said. This, it contends, is surely not substantial evidence.
The testimony on this point is, unfortunately, ambiguous. According to Mrs. Babbitt, Mrs. Lewis came to the nursery daily, and “volunteered information on everyone and everything.” Referring to Hickey, Mrs. Lewis told her “She’s a busybody and a troublemaker. You’ll be sorry you hired her.”
[345]When asked whether Mrs. Lewis mentioned Hickey’s involvement with the UFW, Mrs. Babbitt testified:
“A. I don’t remember.
“Q. Do you remember Mrs. Lewis telling you or—yeah, Mrs. Lewis telling you that Mary had been a secretary of the Union when it had an organizer committee at Lewis Gardens?
“A. Not that she had been a secretary. That she had been there, but not that she had been a secretary.
“Q. That she’d been where?
“A. At Lewis Gardens during the Union, and I just didn’t discuss it anymore.”
The following exchange took place just a little later in Mrs. Babbitt’s testimony:
“Q. ... Do you recall the Lewises discussing any of their former employees with you, specifically in regard to their organizing activity around the time of the election campaign or the actual election at the Lewis Garden Nursery?
“A. Mrs. Lewis might have made mention of it. She was still very concerned about it; but that was during the first couple of days, and I was not in a position to talk about anything other than hiring people and marketing azaleas.
“Q. After Mrs. Lewis realized that you had hired John Martinez and Mary Hickey, did she raise to you, discuss with you in any way, mention to you the Union, or the election campaign, the organizing campaign, or the Union activity that had taken place at Lewis Gardens?
“A. She alluded to it, but we never really discussed it.
“Q. How did she allude to it?
“A. ‘They caused us a lot of their trouble—a lot of our trouble.’ And be that whatever context you want to take it. I don’t know.”
[346]In her testimony Mrs. Babbitt nowhere directly admits she was informed of Hickey’s union involvement by Mrs. Lewis. On the other hand, she never really denies it either. Instead, Mrs. Babbitt appears to be trying to evade the question, as demonstrated by answers such as “I don’t remember,” “might have made mention of it,” and “alluded to it.”
The fact Mrs. Lewis had knowledge of Hickey’s union activity is not contested. From Mrs. Babbitt comes the information Mrs. Lewis had a tendency to talk about “everyone and everything” and was still “very concerned” about the union. Considering all of these circumstances, the ALO’s inference Mrs. Lewis did inform Mrs. Babbitt of Hickey’s union activity seems very reasonable—and not, as San Marcos argues, just “mere suspicion or surmise.”
It would appear general counsel did present a prima facie case Hickey was discharged because of her union activity. The timing of the discharge and Mrs. Babbitt’s comments to Hickey can reasonably be seen as evidence Hickey was discharged for unlawful reasons.
San Marcos did not disprove this conclusion, and did not prove Hickey would have been discharged regardless of union considerations. No explanation was given for Hickey’s discharge; instead, Mrs. Babbitt claimed she quit. This claim the ALO did not credit; a reasonable determination, given some support by the previously mentioned pink slip given to Hickey by Mrs. Babbitt.
The Board’s finding Hickey was unlawfully discharged, while based on inference and circumstantial evidence, is not unreasonable and is supported by substantial evidence.
B. Salvador De Casas
De Casas was one of the six employees working at Lewis Gardens when Babbitt took over. He had been employed by the Lewises since 1976, doing general nursery work—sorting, watering, transplanting, and transporting plants. Like Hickey, De Casas had been active in the UFW organizing committee at Lewis Gardens. On February 19, 1979, De Casas was fired by Mrs. Babbitt. The ALO found De Casas was discharged because of his union activities.
As with Hickey, San Marcos contends there was no evidence Mrs. Babbitt had any knowledge of De Casas’ union activity. On this point, the ALO found De Casas “had been active in the UFW organizing committee. Larry [347]Montano was aware of this and I find that he made Virginia Babbitt aware of it at their interview immediately prior to De Casas’ termination.”
Larry Montano worked for Lewis Gardens and was hired by Mrs. Babbitt to work at the nursery. He was interviewed for the position by Mrs. Babbitt on February 19, the same day De Casas was fired. Montano testified he told Mrs. Babbitt De Casas was a “troublemaker,” but claimed he made no mention of De Casas’ union activity.
However, Montano also admitted having previously told general counsel he did inform Mrs. Babbitt of De Casas’ union involvement at the interview. Montano explained his retraction by claiming he had lied to general counsel in order to “get back” at Mrs. Babbitt, who he thought had accused him of being a thief on an earlier occasion. At the hearing, however, he was under oath, and stated he wanted to tell the truth.
The ALO did not believe Montano’s retraction. First, the ALO noted, Montano admitted having spoken to Mrs. Babbitt after he talked with general counsel, before he testified. Also, he found it suspicious Montano waivered when confronted with his retraction, and admitted to having told Mrs. Babbitt De Casas was a “troublemaker.” The ALO found the circumstances of Montano’s retraction negated its credibility.
The ALO erred in finding Montano had “waivered” about labeling De Casas a “troublemaker”—he had admitted doing this before he was confronted with his changed story.2 The ALO did not, however, appear to put much weight on this supposed waivering in his testimony. His decision to believe Montano’s original story, as told to general counsel, is neither incredible on its face nor inherently improbable, and must be accepted. This being the case, there is substantial evidence Mrs. Babbitt was aware of De Casas’ union activity. Mrs. Babbitt’s supposed lack of knowledge is the only point argued by San Marcos in support of its contention De Casas was not unlawfully discharged, but is insufficient to overcome the evidence establishing her knowledge.
Mrs. Babbitt gave only two reasons for her decision to discharge De Casas. She testified she had “bad vibes” about him at their first interview. She also said De Casas was a complainer, although she admitted to having [348]had only two or three conversations with him. No other reason is given for her decision.
According to De Casas, when he was discharged he was told “the company was not happy with his work.” He said no one at the nursery had ever previously complained about his work. No one at the hearing testified to any instances of poor work by De Casas.
The circumstances of De Casas’ discharge are suspicious enough to conclude De Casas was a victim of Mrs. Babbitt’s union animus. The timing of his discharge, on the same day as her interview with Montano, and Mrs. Babbitt’s failure to give any reasonable explanation for it, when considered with her union problems including its demand to negotiate, allow a reasonable inference De Casas was fired because of his union activity at Lewis Gardens. The Board’s finding De Casas was discriminately discharged is supported by substantial evidence in the record.
C. John Martinez
John Martinez began working for the Lewises as a maintenance man in July 1976. By the time of his layoff, October 1978, he was in charge of packing and shipping. February 5, 1979, he was hired by Mrs. Babbitt to work at the nursery. He was fired six working days later, February 12. The ALO found Martinez’ discharge was, at least in part, the result of his union activity at Lewis Gardens, and so unlawful. Of the ALO’s three unlawful discharge findings, this presents the closest question.
By all accounts, Martinez had been the most active union supporter at Lewis Gardens. He was responsible for obtaining union authorization cards, and for general liaison with the union. He was chosen to be the president of the UFW organizing committee.
The ALO found Mrs. Babbitt was aware of Martinez’ union activity: “Mrs. Babbitt testified that Mrs. Lewis told her that Martinez was ‘dishonest’ and a ‘bad worker,’ but claims his union activity was never discussed. As with Hickey, I find it difficult to believe that his role was not alluded to.”
As with Hickey, San Marcos challenges this finding. On this Mrs. Babbitt’s testimony is less equivocal—she unmistakably claimed to have no knowledge of Martinez’ union activity. But, even though the inference is not as compelling as in Hickey’s case, the evidence can still be seen as supporting a reasonable inference Mrs. Lewis did inform Mrs. Babbitt of [349]Martinez’ union involvement. (See discussion in section on Hickey’s discharge.)
The circumstances surrounding Martinez’ discharge are given in two very different versions; one by Mrs. Babbitt, and confirmed by her assistant, Philippe Bayonet, the other by Martinez, backed up by Mary Hickey. According to Mrs. Babbitt’s version, Bayonet had been told to make sure no shipments left the nursery without an invoice being made. On February 12, Mrs. Babbitt came to the nursery and saw Martinez loading up an unmarked van. Seeing no invoice, she told Bayonet to check the van, but it left before he could do so.
Mrs. Babbitt testified she asked Martinez about the shipment, but he “wouldn’t open up his mouth.” She became very angry at Martinez’ refusal to answer, and told him to “pick up his check.” A later search for the invoice turned up nothing, and when Martinez came to the office he was given a termination slip.
Martinez denies any such incident involving an unmarked van ever occurred. He claims he was called into the office on the 12th and told his position was “no longer available.” In fact, he was given a pink slip which said “Position no longer available.” He asked Mrs. Babbitt about a future job, and she said, “At this time I don’t know what I’m going to do about the nursery.” Hickey, who was present at the time, corroborates Martinez’ account of the events in the office.
The ALO found Martinez’ version of the discharge was the true one. Although Martinez’ credibility was “not beyond reproach,” his account was backed up by Hickey, who the ALO found credible. On the other hand, Mrs. Babbitt’s testimony he found too likely to be influenced by her business interests and her witness struck the ALO “as an underling who could be counted upon to do—and say—what was expected of him.” The ALO’s credibility resolutions are neither incredible on their face nor inherently improbable, and so must be accepted by this court.
There is evidence which would allow an inference Martinez was discharged for unlawful reasons. The timing of his firing was more than just suspicious—only six working days after Martinez started. Martinez, as a former Lewis Gardens employee, was very active in the union and there was testimony by Mrs. Babbitt from which the inference she knew of this activity could be drawn. Accepting the ALO’s determination Martinez was not fired for the reasons given by Mrs. Babbitt, no justification was given for his discharge. This evidence, when considered with the evidence of a [350]discriminatory campaign against former Lewis Gardens employees at the nursery, can be viewed as substantial, if not overwhelming evidence Martinez was unlawfully discharged.
The ALO, however, proceeds to confuse the issue somewhat with the following comments: “I cannot, however, entirely discount Mrs. Babbitt’s claim that she believed Martinez was involved in theft. The trouble is that it was mixed up in her mind with hostility toward the union. The two fed upon each other. I conclude that her preemptory haste in discharging Martinez without confrontation or investigation would not have occurred but for his suspected union sentiments.
“[T]he legal question is whether his discharge would have occurred but for her anti-union bias. ... I conclude that preemptory haste in terminating him—without first confronting him and fully investigating the situation— would not have happened but for his union sentiments. I cannot gainsay at this late date whether he was actually involved in theft or not; he may have been. What I can say is that, because of his union sympathies, he was deprived of the opportunity to vindicate himself and that is a sufficient basis upon which to premise a violation.”
The only possible involvement in theft on Martinez’ part which the ALO mentions is the incident with the missing invoice and the unmarked van. But the ALO credited Martinez and Hickey’s testimony, and Martinez said the incident with the unmarked van never occurred. It is not made clear, then, exactly what the ALO expected Mrs. Babbitt to “investigate” or “confront” Martinez about.
If the incident with the unmarked van did occur, and Mrs. Babbitt did, as the ALO concedes, suspect Martinez of stealing from the nursery, Martinez’ discharge is clearly legal. An employee suspected of stealing, who refuses to comment when confronted in a situation appearing to involve theft from the employer, should not be able to claim he would not have been fired “but for” his union activity (see Royal Packing Co. v. Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826, 833 [161 Cal.Rptr. 870]).
The evidence minimally supports the Board’s finding the firing of Martinez was with cause.
Discriminatory Refusals to Hire
In September of 1978, the UFW petitioned for a representation election at Lewis Gardens’ Vista location. An election was held September 21, 1978, [351]and the UFW won by a vote of 23 to 0. January 18, 1978, the UFW was certified as the bargaining representative for agricultural employees at the Vista nursery, and on January 24, Cesar Chavez wrote to the Lewises requesting negotiations begin.
The letter was received by the Lewises shortly after the agreement to sell the nursery to Babbitt had been reached. It was brought to Mrs. Babbitt’s attention, but she apparently thought the matter to be between the UFW and the Lewises only. The Lewises’ son, Donald, urged Mrs. Babbitt to get legal advice regarding the letter, however, and she did inquire about the matter.
In early February Mrs. Babbitt flew to San Francisco and met with attorneys from the firm of Bronson, Bronson and McKinnon. Pursuant to their advice, Mrs. Babbitt had Donald Lewis send a letter to the UFW, informing them the business had been sold and the new owner was seeking guidance concerning the request to bargain.
On February 16 the UFW wrote directly to Mrs. Babbitt, contending she was a successor to Lewis Gardens and demanded bargaining begin. After receiving the letter Mrs. Babbitt again sought legal advice. She then sent a letter to the UFW, claiming neither she nor Babbitt Engineering was a successor to Lewis Gardens, and declining to bargain with the union.
This refusal to bargain led to the filing of unfair labor practice charges by the UFW. One of the charges alleged the employer had engaged in a discriminatory campaign to “discourage” former employees of Lewis Gardens in an effort to defeat its duty to bargain with the UFW.
One of the factors looked at to determine if the purchaser of a business succeeds to the seller’s duty to bargain with a union is whether there is a substantial “continuity in the identity of the work force across the change in ownership.” (Howard Johnson Co. v. Hotel Employees (1974) 417 U.S. 249, 263 [41 L.Ed.2d 46, 57, 94 S.Ct. 2236, 2244].) The ALO held Mrs. Babbitt had refused to hire former employees of Lewis Gardens in an attempt to prevent a finding of “workforce continuity” and thus attempt to defeat a finding of successorship. The Board affirmed this holding. San Marcos argues there is not substantial evidence in the record to support such a finding.
When Babbitt purchased the stock of Lewis Gardens, only six employees were working at the Vista location. They were all kept on the payroll. The first new employee hired by Mrs. Babbitt was Raul Vega, an experienced [352]grower who had just left a neighboring nursery, Ruline. Knowing she needed additional employees at once, Mrs. Babbitt authorized Vega to hire four workers who had been with him at Ruline, and put her personal driver and gardener, Philippe Bayonet, on the payroll. Mrs. Babbitt also gave Vega permission to look for more employees for the nursery.
Up to this point, the ALO determined, little or no consideration had been given to hiring former Lewis Gardens employees. This was not the result of any illegal motivation, but because of the necessity of hiring employees quickly to get the nursery operational again. But the ALO also found Mrs. Babbitt soon realized she would need quite a few more employees, and she believed it would be helpful to find workers with experience at Lewis Gardens (no evidence in support of the latter assumption is given by the ALO). The next two hirings were of former Lewis Gardens employees, Mary Hickey and John Martinez.
A few days after hiring Hickey and Martinez, Mrs. Babbitt took her trip to San Francisco to consult with her attorneys. The majority makes much of the fact that immediately upon her return Mrs. Babbitt ordered Vega to stop all hiring. From that point on, all hiring was done by her alone. She testified this was due to her need to think over the nursery’s financial condition, as she had just discovered the azalea crop was diseased.
The ALO did not believe this explanation. While it could account for a decision not to hire 40 employees which Vega had said would be needed, it did not justify a failure to hire at least a few more employees to care for an already neglected and damaged crop. Instead, the ALO believed Mrs. Babbitt came back from her trip to San Francisco determined not to hire former Lewis Gardens employees. The ALO surmised Mrs. Babbitt either was given an understanding of successorship and “workforce continuity” by her attorneys there, or at least was made aware the union could not be ignored and a renewed unionization drive at the nursery was possible. This is pure speculation unsupported by any evidence.
About this time a number of incidents occurred which the ALO assumed evidenced Mrs. Babbitt’s growing concern with workforce continuity. Mary Hickey, an office worker at the nursery, testified to a conversation in which Mrs. Babbitt said, with regard to the union, she had “inherited a bag of worms.” Mrs. Babbitt then said she was not against the union, but her employees did not need one as she treated them fairly. On February 14, Hickey, a former Lewis Gardens employee, was discharged by Mrs. Babbitt. According to Hickey, Mrs. Babbitt told her it was “nothing that I had [353]done as far as my job went, but it was very bad timing for me to be there at that time. . . .”
Another employee at the nursery, D. J. Lewis, not related to the owners of Lewis Gardens, testified to an incident where Mrs. Babbitt received a phone call from the union. The call upset her very much, and according to Lewis she told the caller, “Things are really fucked up around here, and I’m going to get to the bottom of it.”
Mrs. Babbitt also thought some of her employees were stealing from her and she apparently believed the union was behind the theft. The ALO admitted she had good justification for believing theft had occurred but did not believe the thefts were at the instance of the union. In February of 1979 she phoned Vega demanding an immediate armed guard for the nursery at night to prevent “union sabotage.” In mid-March she had a deputy from the San Diego Sheriff’s office come to the nursery to investigate the alleged thefts. According to the deputy, Mrs. Babbitt said she believed Vega and John Martinez were responsible for the thefts. As noted above, the ALO had a feeling this was justified though it questioned whether the thefts were union inspired. She said Vega and Martinez were “[ujnion workers; and that she had a non-union place of business; and that Vega and Martinez were attempting to talk to the workers to get them into a union-type structure.”
As we noted above, between February 12 and February 19 Mrs. Babbitt fired three former Lewis Gardens employees. The three had been active in the UFW organizational drive at Lewis Gardens. The ALO found the three discharges, which I discussed in detail in the preceding section, were made by Mrs. Babbitt because of antiunion considerations.
The discharges and her antiunion animus led the ALO to conclude Mrs. Babbitt had consciously adopted a hiring policy aimed at discriminating against employees of Lewis Gardens. As we have noted, the firing of these people may have resulted from union animus, but these firings do not supply an inference of a plan not to hire.
From the time Mrs. Babbitt got back from her trip to San Francisco until March 31, 1979, 19 employees were hired. Three of those nineteen were former Lewis Gardens employees; of those three, two had worked there before the UFW election was held, and one had been a supervisor. Between April 1 and June 30, 1979, another 26 employees were hired; 1 was a former Lewis Gardens employee. The evidence is clear no former employee of Lewis Gardens who requested employment of Mrs. Babbitt was denied [354]work. It is interesting to note, too, of the six Lewis Gardens employees originally hired, the record reveals only De Casas was discharged.
Vega testified to having talked to approximately 12 former Lewis Gardens employees who were looking for work at the nursery. Mary Hickey testified she heard from eight former Lewis Gardens employees regarding employment.3 Neither of these people were in a supervisory position at the time the inquiry was made and neither ever had authority to hire or fire personnel. The testimony was clear none of these names were specifically brought to Mrs. Babbitt’s attention.
Another former Lewis Gardens employee, Duayne Giron, testified to having asked one of the foremen at the nursery, Larry Montano, about getting work there. Montano allegedly told Giron he would not be able to work there because he had worked at Lewis Gardens. The ALO referred to Montano as a “supervisor” but that statement was totally without evidentiary support. Montano himself stated he was only a “foreman” and had never been in a position to hire or fire personnel. His duties as a foreman were never sought out nor explained anywhere in the record.
In the cases of the discharges of Hickey, De Casas and Martinez, the evidence relied on by the ALO and the Board could constitute an unfair labor practice prohibited by section 1153, subdivision (c) of the act as I have conceded above, but a review of the entire record makes it clear there is not substantial evidence to support the ALO’s finding that there was a discriminatory pattern not to hire Lewis Gardens employees.
To summarize, I believe the hiring pattern at the nursery does not evidence a discriminatory campaign not to hire Lewis Gardens employees. In eifect the first six employees hired by Mrs. Babbitt were Lewis Gardens employees—she retained five of the six who are apparently still working at the nursery. She soon afterwards hired Hickey and Martinez, both former Lewis Gardens employees.
These last two hirings were, of course, before Mrs. Babbitt consulted with her attorneys in San Francisco regarding the UFW’s request to bargain. After this meeting, however, during which she may have acquired an understanding of the “successorship” question as the ALO and the Board surmised, four former Lewis Gardens employees were hired through June of 1979. Three of the employees hired before Mrs. Babbitt’s trip to San [355]Francisco, however, were discharged shortly after it. That hardly speaks of a “hiring” discrimination plan.
The ALO found Raul Vega had received a “number of calls” from former Lewis Gardens employees who were looking for work at the nursery. He also found Hickey had received eight such calls. However, the ALO nowhere expressly found Mrs. Babbitt who was the person responsible for hiring was ever informed of any of these calls. Hickey said she left notes on Mrs. Babbitt’s desk but does not state what the notes said or whether the desire for work for specific persons was spelled out in the notes. The absence of this nexus precludes a finding by the ALO or the Board of knowledge of request for work, so the callers not getting jobs cannot be said to be part of a discriminatory campaign. In order to properly reach that conclusion, I submit the record must show Mrs. Babbitt was aware of the calls received by Vega and Hickey, knew the persons referred to were former Lewis Gardens employees and purposely did not hire them for that reason. In contrast, the record shows that with one exception Mrs. Babbitt hired every Lewis Gardens employee she was aware desired employment.
Raul Vega stated he never told Mrs. Babbitt about the calls he received from former Lewis Gardens employees nor did he leave a note. At one point he was asked about the hiring of employees for the nursery at the outset of the operation. He testified Mrs. Babbitt gave him permission to hire former Lewis Gardens employees, but then later told him not to hire anyone until she talked with her attorney.
“Q: Did you have any further occasion to discuss hiring with Mrs. Babbitt?
“A: Yes. On the following days or continuing days I asked her if she had spoken to her attorney as to what we should do, because some employees who had worked with Ruline—
“Ms. Dudley: Huh-uh.
“The Interpreter: I mean, ‘who had worked with Lewis Gardens.’
“The Witness: (Through interpreter)—and others who had not worked there had come. And I had already taken their names and telephone numbers, and I was just waiting for her to say ‘Do it’ so that we’d have—so as to form a group of employees that could work efficiently in the business.”
The manner in which this is phrased does not make it clear whether Vega actually told Mrs. Babbitt about the people, including Lewis Gardens em[356]ployees, who were looking for work. On the other hand, during Vega’s cross-examination, the subject of the calls from former Lewis Gardens employees is again brought up.
“Q: Now you told Mrs. Babbitt, didn’t you, about these people that were applying for jobs and what their names were?
“A: No.”
These two statements by Vega are the only evidence as to whether he informed Mrs. Babbitt of the calls he received from former Lewis Gardens employees. Neither were developed by counsel and it is apparent there is no substantial evidence she refused to hire Lewis employees who requested work.
The ALO found Vega to not be a very credible witness on many points. Despite these findings, the ALO relied on Vega’s testimony as to receiving calls regarding employment from former Lewis Gardens employees. There is no reason why the ALO could not reasonably credit portions of a witness’ testimony while discrediting other portions, credibility determinations being within the province of the Board and not subject to being disturbed absent a showing the credited testimony is incredible on its face, or is inherently improbable (Perry Farms, Inc. v. Agricultural Labor Relations Bd. (1978) 86 Cal.App.3d 448, 463-464 [150 Cal.Rptr. 495]). The fact remains, however, nothing in Vega’s testimony nor that of anyone else establishes the necessary relaying of his information to Mrs. Babbitt.
It is also noteworthy Vega could only remember the names of two of the former Lewis Gardens employees who spoke to him about work, Larry Montano and John Martinez. Interestingly, both were hired by Mrs. Babbitt.
Mary Hickey testified to having told Mrs. Babbitt about one of the callers, Dorothy Van Ginder, and Van Ginder was not hired but the record does not reveal whether she was qualified or why she was not hired. The record also fails to disclose whether she was really interested in work. Hickey also said she did not personally tell Mrs. Babbitt about any of the other calls.
Mrs. Babbitt was in charge of hiring at the nursery, and there was no evidence she ever told anyone not to inform her of employment inquiries from former Lewis Gardens employees. There also was no evidence Mrs. Babbitt learned of Lewis Gardens employees looking for work from any source other than Vega and Hickey. With the exception of Van Ginder, the record shows Mrs. Babbitt hired all of the former Lewis Gardens employees [357]she knew were seeking work at the nursery. If Mrs. Babbitt did not know of any others looking for work, the ALO’s finding of a discriminatory hiring pattern cannot stand. A new employer is free to select its own workforce and has no duty to actively seek out employees who previously worked for its predecessor (N L R B v. Burns Security Services (1972) 406 U.S. 272 [32 L.Ed.2d 61, 92 S.Ct. 1571]).
The hiring pattern, when considered with the other evidence, I believe negates a finding Mrs. Babbitt engaged in a discriminatory campaign to refuse to hire former Lewis Gardens employees.
Successorship
As previously noted, the UFW was certified to represent the agricultural employees at Lewis Gardens’ Vista location shortly before the nursery was sold to Babbitt. After an exchange of correspondence, Mrs. Babbitt wrote the UFW, contending the corporation was not a successor to Lewis Gardens, and refused to bargain with the union. The ALO, however, found Babbitt did succeed to Lewis Gardens’ duty to bargain with the UFW, and so violated the act by its failure to do so. We note again here that since there was no alter ego established, the finding only apply to San Marcos at the very most.
Neither the ALRA nor the NLRA contain any specific statutory provision dealing with the successorship issue. The cases decided under the NLRA, however, have come to recognize the fundamental purposes of the act require the purchaser of a business to, in some circumstances, assume the statutory obligations of its predecessor.
No single mechanical formula has been devised for determining whether an employer has succeeded to the bargaining obligations of its predecessor. In this context, the court in Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. 249, 256 [41 L.Ed.2d 46, 53, 94 S.Ct. 2236, 2240], explained: “[W]e must necessarily proceed cautiously in the traditional case-by-case approach of the common law. Particularly in light of the difficulty of the successorship question, the myriad factual circumstances and legal contexts in which it can arise, and the absence of congressional guidance as to its resolution, emphasis on the facts of each case as it arises is especially appropriate. ”
However, a number of factors have come to be recognized as guideposts for determining whether an employer has succeeded to its predecessor’s duty to bargain: “These factors include, inter alia, consideration of the [358]continuity of workforce, continuity of business operations, similarity of supervisory personnel, similarity of product or service, similarity in methods of production, sales and inventorying, and use of the same plant.” (N. L. R. B. v. Security-Columbian Banknote Co. (3d Cir. 1976) 541 F.2d 135, 139.) The cases decided under the NLRA have come to view as one of the most important considerations the continuity of the workforce—the number of employees in the bargaining unit who had also worked for the predecessor employer (Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. at pp. 263-264 [41 L.Ed.2d at p. 57, 94 S.Ct. at pp. 2243-2244]).
In San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 874, the California Supreme Court first dealt with the successor-ship issue under the ALRA. The court agreed with the cases decided under the NLRA holding a new employer must in some circumstances succeed to its predecessor’s duty to bargain with a union. However, the court also noted some of the unique aspects of the agricultural setting—such as the seasonal nature of employment, the migration of employees, and the unskilled nature of the work—and held considerations in addition to “workforce continuity” should generally play an important role in determining successorship liability under the act (id. at pp. 890-891). Unlike the workforce in San Clemente, we are here dealing with a relatively stable, year-round employment pattern. The majority characterizes the six-person workforce when San Marcos took over as a “low ebb.” This was an “ebb” resulting from Lewis’ business failure and not from seasonable workload. The six-man workforce was the full complement of year-round employees when San Marcos began the operation and San Marcos hired them all, then proceeded to build up the workforce to a new level of employees based on the need under the new management’s program.
The ALO, whose decision was issued before San Clemente Ranch was decided, emphasized the workforce continuity factor in finding Babbitt had succeeded to Lewis Gardens’ duty to bargain. The Board, while rejecting the ALO’s “overly mechanistic analysis concerning the factor of workforce continuity,” affirmed the ALO’s conclusion.
With regard to workforce continuity, the court in NLRB v. Burns Security Services, supra, 406 U.S. 272, 294-295 [32 L.Ed.2d 61, 77, 92 S.Ct. 1571, 1586], stated: “[T]here will be some instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining representative before he fixes terms. In other situations, however, it may not be clear until the successor employer has hired his full [359]complement of employees that he has a duty to bargain with a union, since it will not be evident until then that the bargaining representative represents a majority of the employees in the unit . . . .”
From this language comes the concept workforce continuity cannot be determined until a full complement of employees have been hired by the new employer. As the court noted in San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 874, 888-890, “full complement” does not necessarily mean “peak employment. ” This is especially true in the agricultural setting, where great seasonal fluctuations in workforce could result in peak employment not being reached for many months after a change in ownership. Waiting until peak employment is reached to determine a new employer’s duty to bargain could deprive agricultural employees of the benefits of representation for a substantial period of time.
The ALO in this proceeding did not wait until peak employment had been reached at the nursery to determine if Babbitt had a duty to bargain with UFW; instead, he waited until there was a representative complement of workers. The ALO found there was not such a complement when Babbitt first took over the nursery—only six employees were then working, and it was clear Babbitt intended to hire more employees soon.
The ALO determined a representative complement of employees had been reached by the beginning of March 1979. During February the workforce had increased from 12 to 22; it then stabilized and remained constant until the end of March. This stabilization, the ALO reasoned, indicated the nursery was receiving at least the minimal attention it needed, and had reached a representative complement of employees. The ALO also felt it was of some significance the number of employees at the beginning of March was very close to the number of employees who were at Lewis Gardens at the time of the representation election. In light of these factors, the ALO’s choice of the beginning of March as the date on which workforce continuity should be determined is certainly not unreasonable and is a matter best left to the expertise of the Board. I cannot disturb that finding.
Of the 22 employees at the nursery on March 1, only 7 were former Lewis Gardens employees. Looking only at workforce continuity, then, it would appear San Marcos did not succeed to Lewis Gardens’ duty to bargain with the UFW—a majority of its employees had not worked at Lewis Gardens.
The union argues, however, an employer who engages in a campaign to refuse to hire its predecessor’s employees, for the purpose of obviating a successorship finding, has committed an unfair labor practice. In such a situation, an order to reinstate the predecessor’s employees who were dis[360]criminated against is appropriate. And, when such a discriminatory campaign has been established, workforce continuity can be presumed. (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 764 [195 Cal.Rptr. 651, 670 P.2d 305]; K. B. & J. Young’s Super Markets, Inc. v. N. L. R. B. (9th Cir. 1967) 377 F.2d 463, 465 (cert. den. 389 U.S. 841 [19 L.Ed.2d 105, 88 S.Ct. 71].)
Seven of the twenty-two employees at the nursery on March 1 had worked at Lewis Gardens. Three other former Lewis Gardens employees (Hickey, De Casas and Martinez) had been unlawfully discharged. This totals 10, less than half of the workforce. Hickey named eight former Lewis Gardens employees who were looking for work at the nursery4 and Vega thought there were more. However, as we have noted above, since none of these persons come forward or were denied work, their request for work never having been shown to have been submitted to Mrs. Babbitt, they cannot be said to be included in the workforce of San Marcos. Given this evidence, the ALO could nqt presume the majority of the workforce at Babbitt would have been composed of former Lewis Gardens employees, so the finding of successorship must fail.
San Marcos argues the ALO, in his concentration on workforce continuity, ignored evidence of substantial changes in the operation of the nursery after Babbitt took over, changes which made the bargaining unit no longer appropriate. As I have noted above, the changes in the business operation, management, size of staff and procedure were substantial, and the ALO’s conclusiqn in this regard totally ignores the record of uncontested facts relating to San Marcos’ business.
The ALO found there was an eventual change in the product line at the nursery, but this did not begin until August 1979, and was still incomplete at the time of the hearing. The need and planning for such a change had to predate that. While the skills required for the new product line were essentially the same as those required for the old product line, the employees were essentially unskilled. Even the marketing of the plants changed. It was in fact and in effect a very different business.
In my view, there was no substantial evidence to hold San Marcos was the successor employer to Lewis Gardens.
[361] Remedy
Duayne Giron
In his recommended remedy the ALO included Duayne Giron, a former Lewis Gardens employee, who the ALO concluded was one of the victims of the discriminatory campaign at the nursery. Giron never actually applied for work at the nursery, nor did he even call or visit the nursery to inquire about a job.
Instead, Giron had asked one of the employees at the nursery, Larry Montano, about getting work there. Montano, a friend of Giron’s and the cousin of Giron’s wife, allegedly told Giron he would not be able to get a job at the nursery because he had worked at Lewis Gardens. Because of this, Giron did not attempt to get a job at the nursery. The ALO apparently felt this was enough to include Giron in the remedy for those who were victims of the discriminatory campaign at the nursery.
San Marcos attacks this finding on two grounds. First, it argues, Montano denied he was ever asked by Giron about work at the nursery, and denied he ever said anything about Mrs. Babbitt not hiring former Lewis Gardens employees. The ALO, however, specifically found Giron’s testimony to be credible, and found Montano not to be a trustworthy witness. Credibility resolutions are in the domain of the ALO, and as his determination is neither incredible on its face nor inherently improbable, it will not be disturbed on appeal.
Second, San Marcos points out Giron never applied, formally or informally, for a job at the nursery. There is no evidence Mrs. Babbitt was ever aware Giron was looking for work. “The elements of proof of an unfair refusal to rehire charge are the employee applied for an available position for which he was qualified and was unequivocally rejected, primarily because of union support. (Kawano, Inc. v. Agricultural Labor Relations Bd., supra, 106 Cal.App.3d 937, 943 (italics added).) As Giron at no time applied for a job at the nursery, Babbitt contends, he cannot be included in the remedy.
There is, however, authority for the proposition a discriminatee need not formally apply for work if to do so would be futile. “When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motion of submitting an application.” (Teamsters v. United States, 431 U.S. 324, 365-366 [52 [362]L.Ed.2d 396, 434, 97 S.Ct. 1843, 1870]; see also N. L. R. B. v. Park Edge Sheridan Meats, Inc. (2d Cir. 1963) 323 F.2d 956; Piasecki Aircraft Corporation v. N. L. R. B. (3d Cir. 1960) 280 F.2d 575 (cert. den. 364 U.S. 912 [5 L.Ed.2d 365, 81 S.Ct. 380]).) In these cases, however, the employer made it somewhat clear the employees discriminated against would not have a chance of being hired. As stated in Kawano, Inc. v. Agricultural Labor Relations Bd., supra, 106 Cal.App.3d at page 952: “[I]f an employer unequivocally and publicly promulgates his unconditional refusal to rehire a certain category of employees, proof of such promulgation excuses the need to prove individuals in the category made application for rehire which would under the circumstances have been futile.” (Italics added.)
Unquestionably, Mrs. Babbitt never publicly pronounced her refusal to hire Lewis Gardens employees. The issue here, then, is whether Montano’s statement was enough for Giron to reasonably conclude it would be futile to apply, and so excuse his duty to do so.
To allow Giron to be included in the remedy seems to drop the threshold of an acceptable case below present practice. As previously discussed, Mrs. Babbitt did hire six Lewis Gardens employees at the outset and later, between the time she took her trip to San Francisco in February 1979, and June 30, 1979, she hired four more. Thus, it cannot be said Giron had absolutely no chance of being hired if he applied.
Giron was told by one of San Marcos’ employees he had no chance of getting a job at the nursery. An employer is responsible for the statements of its “supervisors,” even if unaware of them, unless it repudiates those statements (Merrill Farms v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 176, 183 [169 Cal.Rptr. 774]). It would seem reasonable for a person to conclude it was futile to apply if one of the employer’s supervisors told him it would be. Montano, however, was not and never had been a supervisor at San Marcos. He was only described as a foreman and testified he never had authority to hire or fire. Nothing else in the record indicates what his authority was or might be assumed to be (see § 1140.4, subd. (c)). Under these circumstances, it is not proper to find Giron was reasonably justified in his belief it would be futile to seek employment.
People Not Named in Complaint
The ALO found eight people were victims of Babbitt’s campaign to refuse to hire former Lewis Gardens employees. Babbitt was ordered to offer employment to the eight, Reynaldo De Casas, Patricia Daltorio, Dorothy Van [363]Ginder, Duayne Giron, Andres Gonzales, Pedro Gonzales, Conrado Luna, and Socorro Vega, and to make them whole for any lost pay or benefits.
The eight were never mentioned in the complaint, the prayer for relief, or in general counsel’s responses to discovery requests. To impose make-whole relief for these eight, I believe, is an abuse of discretion.
The Board concedes the eight were not specifically mentioned in the complaint. However, paragraph 12 of the complaint charges Mrs.. Babbitt: “[Ejngaged in a discriminatory campaign to discourage and/or terminate former employees of Lewis Gardens, Inc. including but not limited to John Martinez, Salvador de Casas, and Mary Hickey—in an effort to avoid its obligation to bargain with the UFW.” (Italics added, dashes in original.)
I believe minimal due process requires a person charged with an unfair labor practice be given more specific notice than such vague description. I would concede, however, the record is unclear just how San Marcos was prejudiced in this case. Moreover, in any event, since I believe there is no substantial evidence of a discriminatory campaign by San Marcos and it is not a successor employer, it is my view these eight employees are entitled to no relief on the particular basis asserted.
The Proper Award
Since I would hold there was no discriminatory campaign not to hire Lewis Gardens employees and there was no successorship obligation to negotiate with the UFW, the make-whole award must fall, leaving only lost wages of the three discharged employees.
Conclusion
Insofar as the Board’s decision holds San Marcos violated the act by discharging Mary Hickey, Salvador DeCasas and John Martinez, I would affirm. The remedial provisions relating to their reinstatement and backpay, and to the giving of notice of the proceedings regarding their unlawfiil discharge, are entitled to enforcement. I would, however, modify the Board’s order by deletion of all references to Babbitt Engineering and Machinery, Inc. since there is no substantial evidence it was the alter ego of the employer charged here or otherwise accountable on a theory of agency or successor corporate entity. I would also modify the Board’s holding petitioner San Marcos violated the act by their refusal to hire former employ[364]ees of Lewis Gardens, and by failing to bargain with the UFW, by striking remedial measures imposed.
A petition for a rehearing was denied March 12, 1984. Cologne, J., was of the opinion that the petition should be granted. Petitioners’ application for a hearing by the Supreme Court was denied May 16, 1984. Bird, C. J., did not participate therein.
No formal appearance was ever made by San Marcos, but at the hearings before the Board it was assumed by both parties San Marcos had made an appearance and the attorneys originally appearing for Babbitt were presenting the arguments for both respondents. At oral argument, San Marcos asserted the failure to make a formal appearance for it was an oversight. The representation of San Marcos as a party to this petition was apparent in the briefs and at all proceedings, and no prejudice was seen by San Marcos’ oversight in not having made a formal appearance. It was only a clerical error. Formal appearance was requested after the matter was brought to San Marcos’ attention and the request was granted.
Further, De Casas did not, as claimed by the Board in its brief, admit he “maybe” told Mrs. Babbitt De Casas was involved in bringing the union to Lewis Gardens. Instead, Montano testified he “personally” thought De Casas was belligerent. When asked if, in his opinion, De Casas was belligerent about the union, Montano replied “maybe.”
Mary Hickey named Patricia Daltorio, Conrado Luna, Andres Gonzales, Reynaldo De Casas, Larry Montano, Pedro Gonzales, Socorro Vega and Dorothy Van Ginder.
When Larry Montano, named by Hickey but also hired by Mrs. Babbitt February 26, is considered, the number of Hickey-named work seekers drops to seven and the significance of her testimony lessens accordingly.