Abatti Farms, Inc. v. Agricultural Labor Relations Board

107 Cal. App. 3d 317, 165 Cal. Rptr. 887, 1980 Cal. App. LEXIS 1969

• Court: California Court of Appeal
• Decided: June 24, 1980
• Docket: Civ. 18961
• Status: Published

Opinions

Opinion

BROWN (Gerald), P. J.

Abatti Farms, Inc., and Abatti Produce, Inc. (Abatti) petition for writ of review of a final order of the Agricultural Labor Relations Board (Board) pursuant to Labor Code section 1160.8. We have granted review to determine if substantial evidence in the whole record supports all the findings and orders of the Board. (Lab. Code, § 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 343-346 [156 Cal.Rptr. 1, 595 P.2d 579]; Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 491 [95 L.Ed. 456, 469, 71 S.Ct. 456].)

Abatti is an agricultural employer subject to the provisions of the Agricultural Labor Relations Act (Act), Labor Code section 1140 et seq. Abatti grows about 12 row crops on some 13,500 acres in Imperial County. Three entities manage the business, all owned and controlled by Ben and Tony Abatti, brothers. The enterprise is operated as a family business out of an office in El Centro. The entities are Abatti Farms, Inc., employing the year-round employees or “steadies”—drivers, irrigators, weeding and thinning crew—who maintain the land and crops; Abatti Produce, Inc., which employs seasonal employees to harvest, pack and ship the crops; and Abatti Bros., a partnership, which owns and leases the land.

The events scrutinized here arise out of organizing efforts of the charging party, United Farm Workers of America, AFL-CIO (UFW) during the Imperial Valley winter season of 1975-76. Abatti then employed about 200 seasonal workers and 100 to 300 steadies. The campaign at Abatti took place during November and December 1975, and the election held January 28, 1976, resulted in certification of UFW as bargaining representative of Abatti’s employees. UFW then brought unfair labor practice charges against Abatti before the Board, including charges of denial of access, coercive interrogation of employees, and discriminatory discharge or refusal to rehire employees.

The Board found the following unfair labor practices had been committed: 1. Illegal surveillance, violating Labor Code section 1153, subdivision (a), by security guard, Kile, who approached groups of employees and organizers while they were talking or organizers were handing out leaflets at the gate to the Abatti premises, communicating the impression of spying on the workers;

2. Unlawful interrogation, consisting of Jose Rios (supervisor) telling employee Avitua she should vote for the Teamsters in the election, and telling her not to wear a UFW button;

3. Unlawful interrogation and threats to employees in the shovel crew by supervisor Ramon Gonzales;

4. Coercive interrogation consisting of statements by irrigator supervisor Charlie Figueroa to employee Abelino Ortega;

5. Discriminatory discharges and/or refusals to rehire 13 out of 14 charged discriminatees in violation of Labor Code section 1153, subdivisions (a) and (c).

The Board also found Abatti had committed an unfair labor practice in denying union organizers access to a shop on Abatti premises, on McCabe Road near Heber, during the prework hour of 5 to 6 a.m.

The final Board order provides: the above named unfair labor practices have been committed; Abatti shall cease and desist from unfair labor practices, sign a retraction notice, distribute the notice to all employees presently working for Abatti or who shall be hired during 12 months following issuance of the Board order, and mail the notice to past employees employed between December 13, 1975, and September 20, 1976; if addresses of former employees are not maintained, then Abatti shall broadcast the notice on a southern San Diego County area radio station once a week for four weeks during the next peak hiring season; Abatti shall reinstate with back pay the 13 discriminatees; and finally, a Board agent shall have one hour company time access following reading of the notice to answer questions of employees.

Facts

I. Denial of Access

Workers would congregate in the shop on McCabe Road before work both to get their instructions for the day and also in some cases to drink coffee, warm up, roll dice, and wait for work to start. Union organizers had claimed the right of access to those premises under Board regulations which grant access to employer’s premises during the hour before and the hour after work and at other specified times provided such access does not disrupt the employer’s operations. (Cal.Admin. Code, tit. 8, § 20900, subd. (e)(4)(c); see also Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 417 [128 Cal.Rptr. 183, 546 P.2d 687].) The UFW took the position work had not yet started, since the official starting time for steadies was 6 a.m., and further claimed no work was being performed in the shop which organizing efforts might disrupt. Abatti, however, denied access to organizers and in some cases had them arrested, because it claimed machinery repair work and other operations, including giving of instructions, was going on in the shop during that hour, and the union organizers interfered with those operations. Also, Abatti claimed the union had effective alternative means to communicate with the workers before work at the gate to the premises. The Board finding was the union may have some prework access to the shop during an organizational period, but must first ascertain when work really starts, consisting of the giving of instructions or like operations, and may then have access during the hour before such start. The Board also held to be unfair labor practices both the expulsion of an organizer, Juan Salazar, while he was attempting to address workers at the shop at 5 a.m. on December 15, 1975, and the citizen’s arrest of five organizers on December 16 while “in lawful organizational activities” at the shop.

As we have stated, Board regulations which our Supreme Court has upheld permit nondisruptive access to the employer’s premises during the hour before work. The Board here found such access was not disruptive. The transcript evidence conflicts on the question of disruption of work. We think the solution of the problem here reasonable, namely, permitting access to the shop area but leaving it to the union organizers to ascertain from Abatti personnel when work, in the form of instructions, actually starts. Access may then be had one hour before such starting time. The findings that organizing efforts do not disrupt types of work other than instructions, such as machine repair, are not inherently incredible. Although Ben Abatti testified repair work on machinery was going on in the shop at the specified time, he did not suggest anything about the nature of the operations which would make exclusion of the public necessary, such as the danger of flying fragments or fire or the necessary use of noxious chemicals. Organizing efforts would, obviously, interfere with the giving of instructions and therefore the Board found, and we agree, such efforts must precede the start of instructions. We conclude the order permitting access before instruction begins is entitled to enforcement, and the findings of wrongful denial of such access should stand.

II. Surveillance of Employees

Some time in August 1975, Abatti hired a security guard, Kile, to prevent vandalism. UFW organizers testified he was stationed at the gate to the Abatti premises some time in September 1975, but Ben Abatti testified he was stationed there December 13, 1975, after the first arrest of a UFW organizer in the shop area. UFW organizers further testified Kile’s presence at the Abatti gate was intimidating, interfering with their efforts to talk to workers and pass out leaflets there. However, other evidence indicated it was difficult to communicate at the gate in any event without blocking traffic, since there was a continuous flow of vehicles arriving through the gate each morning before work. Although three organizers testified the guard’s presence was intimidating, no other employees testified he had been intimidated or coerced by that presence. Further, there is no evidence of acts of intimidation or brutality by Kile, other than his mere presence. Mere stationing of a security guard at the gate is not inherently coercive. In its brief before this court, the Board does not point to any record evidence of employee intimidation other than testimony of the union organizers, and relies mainly on what it regards as the suspicious timing of Kile’s placement at the gate, just after the arrest of an organizer. Such an inference is not supported. There is no evidence of “surveillance” as that term is normally understood.

III. Illegal Interrogations and Threats

A. Supervisor Jose Rios, Employee Herlinda Avitua

Under this heading we discuss the various encounters between supervisor Rios and employee Herlinda Avitua, in the weeding and thinning crew. The ALO suggested one such interchange was an unfair labor practice, namely, Rios’ asking Avitua if she signed a UFW authorization card, but advised dismissing the other charges, saying the conversations were friendly interchanges without coercive effect. The Board, however, found to the contrary and declared all the encounters were coercive interrogations violating the Labor Code. (§ 1153, subd. (a).)

The substance of Avitua’s testimony is: she was friendly with Rios and with his daughter and rode to work with him before the election. (After the election the friendship cooled.) On one occasion he saw her wearing a UFW button and told her she should not wear it. She continued to wear it. The flavor of the conversation is that of cautionary advice rather than a command. Also, on another occasion, Rios asked her for whom she was going to vote, and when she responded she did not know; he advised her to vote for the “little horses” (caballitos), which is the Teamster symbol. She specifically testified the conversations were friendly and she was not intimidated by the questioning. Another employee, Elena Solano, strongly prounion, testified to overhearing some of the above conversations, but did not describe anything intimidating or unfriendly about them.

The ALO proposed as impermissible Rios’ questions whether Avitua signed the card and also his remarks she should not have signed it, on the ground of intimidation, based on her testimonial demeanor. He recommended dismissing the charge about advising her to take off the button because the evidence did not establish a button was worn, although Avitua testified she wore it and her testimony was credited in establishing the coercive nature of the first interrogation. He said the statement about voting for the “little horses” was not made, crediting testimony of Rios who denied it, rather than Avitua. There is some inconsistency in these proposals and recommendations, now crediting one witness, now another, and there is no elaboration by the ALO of the reasons for suggesting intimidation. As stated, the witness herself denied intimidation. In any event, the Board went beyond the ALO and found all of the above interchanges impermissible, because Rios had “exhibited an anti-union animus” and had “initiated the conversation at work without any legitimate reason or basis for seeking the requested information.” The Board found it irrelevant Avitua was not actually intimidated, because in its view such questioning per se tends to interfere with the free exercise of employees’ statutory bargaining rights.

B. Shovel Crew Foreman Ramon Gonzales

Under this heading we discuss three incidents charged as impermissible interrogation, involving foreman Gonzales, dismissed by the ALÓ and reinstated by the Board.

First, Gonzales allegedly asked employee Augustine Rodriguez whether he had a UFW button. The employee testified he never wore a button but had one in his pocket, and in response to questioning said he had found it. Gonzales denied the conversation took place. Rodriguez testified to overhearing a conversation in which Gonzales said, “The union wasn’t any good.” He admitted not hearing the entire conversation, and it is not established which union was referred to. The Board found the charge established, on the basis of the “anti-union animus” expressed in the overheard statement, although the evidence conflicts as to whether the conversation even took place.

The other two incidents are: first, employee Reynaldo Bermea, who did some organizing work for the union, claimed Gonzales asked him whether fellow employee Berumen had a union organizing list. Next, employee Francisco Ortiz testified Gonzales told him Berumen could be sued for having such a list. The testimony of neither employee is very detailed or specific. There is no indication of coercive or intimidating effects on the organizing activities of either Bermea or Berumen, or of a serious threat to sue anyone. The Board found impermissible interrogation, based on its separate findings in this action of discriminatory layoff of Bermea and Berumen, to be discussed, as well as on its independent review of the evidence.

C. Irrigator Foreman Charlie Figueroa/Employee Abelino Ortega

In one conversation, Figueroa asked Ortega his views on the UFW, which Ortega said he supported. Figueroa replied, “Well, if Chavez’s union gets in, everything is going to get fucked up.”

The conversation continued:

“He said, ‘Right now you are holding one bird on your hand and you see many that are flying. Then you let the one you are holding go to get the ones that are flying, and at the end you are going to end up without nothing.’

“Q. What did you understand that to be referring to?

“A. With this I understood that he was telling me if I sympathized with the union I was going to end up without my job at Abatti.”

The question whether this interchange was an exchange of opinions, protected free speech, or an intimidating threat of reprisal, was resolved by the Board: “These statements clearly constitute unlawful interrogation and a threat that supporting the UFW would cause the employee to lose benefits he already had.”

D. Other Interrogations

For the sake of brevity the remaining interrogations declared impermissible by the Board are here discussed together. They include statements by sprinkler crew foreman Eddie Sanchez to employees Raul Jiminez and Miguel Lopez Chavez, and by lettuce crew foreman Fidel Quiroz to employee Rafael Ayon, as well as a statement by Agnes Poloni, sister of one of the Abatti brothers. In the case of the Sanchez crew, the Board found the relationships between foreman and “interrogated” employees were friendly. Both employees were superior workers. Sanchez in an amicable manner advised them not to wear indicia of UFW support in the presence of the Abatti brothers. In the lettuce crew, Quiroz made some vague predictions about what the Abattis might do if the UFW won the election, such as go back to Italy or stop planting crops. Again, the Board agrees Ayon was not intimidated by such statements. Similarly, Agnes Poloni, employed in the office, made remarks about a conversion to less labor intensive crops, such as alfalfa, if the union won. Citing NLRB v. Gissel Packing Co. (1969) 395 U.S. 575 [23 L.Ed.2d 547, 89 S.Ct. 1918], the Board characterized all the foregoing statements “linking a possible union victory to loss of jobs ... without supporting facts showing economic necessity” as impermissible threats of reprisal violating Labor Code section 1153, subdivision (a).

The charges of coercive threats or interrogation of employees present especially difficult considerations of competing interests. The First Amendment protects the expression of ideas, including the antiunion views of management, but the ALRA and the NLRA protect the rights of employees to choose a bargaining representative in a noncoercive atmosphere. The statutes specifically establish an employer’s freedom of speech in this area unless he expresses “threat of reprisal or force, or promise of benefit.” (Lab. Code, § 1155, patterned directly on 29 U.S.C.A. § 158(c).) A mere prediction of what effect unionization would have is not necessarily an unfair labor practice (NLRB v. Gissel Packing Co., supra, 395 U.S. 575). “We look not for certain words that are allowed and others that are forbidden. Rather, we are to view the statements in their entirety and consider their total effect on the receiver. [Citations.]” (N.L.R.B. v. Four Winds Industries, Inc. (9th Cir. 1976) 530 F.2d 75, 78.)

The test is the effect of the speech in context (Labor Board v. Virginia Power Co. (1941) 314 U.S. 469 [86 L.Ed. 348, 62 S.Ct. 344]). The United States Supreme Court restated the test in NLRB v. Gissel Packing Co., supra, 395 U.S. 575, 617 to 618 [23 L.Ed.2d 547, 580]: “Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer’s rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk.” From the many cases dealing with this problem subject we distill the following principle: The question whether employer statements are coercive in context is normally one peculiarly within the discretion of the agency, Board, because of its particular sensitivity to the effects of speech in the labor election context. Further, systematic, repeated or unambiguous threats of job loss and plant closing on account of a union victory are nearly always coercive, even though isolated expressions of antiunion sentiment by lower level man-' agement employees are often permissible expressions of ideas.

Here the context of the interrogations, namely, a contested union representation election in which the employer bitterly opposed the union, is established and constitutes substantial evidence in support of the Board findings of unlawful interrogation. (See Labor Board v. Link-Belt Co. (1941) 311 U.S. 584, 599 [85 L.Ed. 368, 378-379, 61 S.Ct. 358].)

IV. Discriminatory Discharges/Refusals to Rehire

The Board upheld charges of discriminatory discharge or refusal to rehire 13 of 14 employees. We review this portion of the order subject to these legal principles: The charging party has the burden of proving a prima facie case of unlawful motive for discharge or refusal to rehire, and if it does so, then the burden shifts to the employer to show a legitimate business reason for the act (Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274 [50 L.Ed.2d 471, 97 S.Ct. 568]).

As was said in N.L.R.B. v. Eastern Smelting & Refining Corp. (1st Cir. 1979) 598 F.2d 666, 671: “We have put the Mt. Healthy principle in the past in terms that, if the employer has established a good reason, it is not to be charged unless its action would not have been taken ‘but for’ the improper motivation, words now to be found in the penultimate paragraph of the Court’s recent opinion, following Mt. Healthy, in Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (79). Givhan held the employer entitled to this defense even though its improper motivation was the ‘primary’ one—an admitted reliance upon conduct which the Court found was constitutionally protected. However, using the Mt. Healthy and Givhan test, once the Board has shown a ‘significant’ improper motivation, the burden is on the employer to prove that it had a good reason, sufficient in itself, to produce the discharge. Id., 429 U.S. at 287, 97 S.Ct. 568.”

A. Shovel Crew

Foreman Ramon Gonzales laid off 16 workers in late January 1976 due to seasonal work slowdown. The group included both union and nonunion supporters, and included employees related to the foreman. In selecting persons for layoff, Gonzales operated according to his memory of who had seniority. After the layoff, the union charged Gonzales impermissibly refused to rehire six employees: Berumen, Bermea, Ortiz, Chavarria, Montoya and Rodriguez.

Berumen first worked at Abatti in 1971, with intermittent layoffs. He was a member of the UFW organizing committee for his crew, had a union bumper sticker on his car, wore a UFW button for several days and passed out leaflets and buttons at the gate just before the election. He is the employee who was the subject of Gonzales’ alleged interrogation of Bermea, whether Berumen had a union organizing list. When laid off, he was allowed to keep some company tools. His testimony about reapplication efforts is four days after discharge, when work was probably not available, he applied and then “several times” at unspecified dates he claims he went to Gonzales’ house to ask for work. He did not recall specifics of his applications in his testimony. Berumen testified he did not know if the company was aware of his union activity. Gonzales denied knowledge of union activity of any of his crew members and indicated he had little personal contact with them.

Chavarria was likewise on the organizing committee. He was first hired at Abatti in 1967. Gonzales claimed he laid off this employee on account of frequent absences. There was also some evidence Chavarria drank on the job, but Gonzales specifically said this fact was not the reason for the layoff. The testimony conflicts whether Chavarria wore a button and whether Gonzales knew of it. Chavarria admits he never reapplied for work, allegedly because he overheard Ben Abatti refuse work to Berumen and Ortiz, and therefore deemed it futile to apply. The Board refers to Chavarria’s drinking on the job and states such reason for his discharge is pretextual since others drank in the field. In fact, it is irrelevant since this was not the reason given for his discharge. Also, the Board indicates another employee, Sixto Lopez, had a similar poor attendance record but was later rehired.

Bermea started work at Abatti in October 1974 and worked sporadically, holding other jobs elsewhere in 1974. His seniority was therefore low. He was on the UFW organizing committee and was the employee Gonzales allegedly asked about Berumen’s organizing list. He testified, as did Chavarria, Gonzales saw them signing UFW authorization cards. He claims he wore a button on his hat one day. Three months elapsed between the day he signed the authorization card, November 4, 1975, and his layoff in January. Like Berumen, he apparently kept some company tools with permission on layoff. He admittedly found another job from April to June 1976. He did testify he reapplied at Abatti and was told he was suspended.

Augustine Rodriguez first worked at Abatti in the Figueroa crew from 1970 to 1972. He was hired in the shovel crew in January 1976 just before the layoff and had minimal seniority. He accepted leaflets and hid a UFW button in his pocket. He claims he asked about work some seven times in the three weeks after his discharge and may have asked again in about six months.

Montoya had worked for Abatti on and off since 1967 and had also worked for other companies, including Saikhon from June to September 1975. He joined the shovel crew at Abatti in late September 1975. He took leaflets and sometimes wore a UFW button. Because he rode to work with Gonzales, the Board discredited all of Gonzales’ testimony he had no knowledge of union sympathies of his crew members.

Francisco Ortiz, another organizing committee member, passed out leaflets twice and wore a button. He gave contradictory testimony, first denying, later admitting he was reinstated in melon work in May 1976. He had worked for Abatti five years. His testimony about reapplication efforts was he asked for work once the week of the layoff and then “kept trying.” He was, in fact, rehired.

B. Sprinkler Crew

This charge involves sprinkler crew foreman Eddie Sanchez and two employees, Raul Jiminez and Miguel Lopez Chavez, laid off January 21, 1976. These employees were good workers who had received bonuses in the past. Their overall relations with the foreman were friendly. Jiminez testified although he differed with Sanchez about the union they had a good relationship. Jiminez had admitted low seniority in the crew since September 1975, and Chavez had worked since October 1975. The layoff of both was due to a work slowdown and not discriminatory. However, Jiminez filed an unfair labor practice charge against Abatti after the layoff, and now claims he was not rehired because of filing the charge.

Chavez never reapplied for work, claiming he heard Jiminez was refused work and therefore thought it useless to apply. Jiminez testified he asked for work in September 1976 and Sanchez told him the crew was full. Sanchez essentially corroborates this testimony, although there is some ambiguity about whether Jiminez asked for a job in so many words. The Board states payroll records indicate hiring of employees in the Sanchez crew in late September and early October and relies on this evidence to indicate work availability when Jiminez applied. The payroll records could also be viewed as evidence corroborating Sanchez’ statement to Jiminez the crew was full. The Board decision itself indicates there is doubt whether work was available when Jiminez applied. Also, the evidence conflicts whether other work at Abatti, specifically, work in rapini, was available at time of initial layoff and whether Sanchez had some obligation to refer Jiminez and Chavez to the other crew. Here Sanchez testified such work existed and he offered it to them, but Jiminez and Chavez testified no work was offered.

Both discriminatees were visible UFW supporters. They wore buttons and Jiminez yelled, “viva Chavez” on occasion.

C. Irrigator Crew

Irrigator foreman Charlie Figueroa laid off employee Abelino Ortega allegedly because he wasted water and was frequently absent. Ortega had been with the Abattis since 1973, but missed seven months in 1975 due to illness. He had a UFW bumper sticker on his car, which he parked off the premises; he passed out leaflets after his discharge (which occurred two days before the election) and was apparently a strong union supporter. Although Figueroa denied knowing of his union sympathies, the circumstantial evidence of his knowledge is quite strong. Ortega is the employee to whom Figueroa expressed his views about the UFW, discussed above under the heading “interrogation.” Further, an irrigator had not been fired in the Figueroa crew for 15 years for spilling water.

D. Tractor Crew

Here is charged the alleged discriminatory discharge of tractor driver Isidoro Prieto by foreman Albert Studer. Prieto started work at Abatti in August 1974. His union activity consisted of willingness to speak to organizers and take leaflets. He admitted deafness, making it hard for him to hear instructions in the field, and had problems falling asleep on his night driving shift. He fell asleep frequently and drove dangerously, weaving in the fields. Further, he was so secretive about his union support, he admits nobody may have known of it. In finding discriminatory discharge, the Board relied on the timing of the discharge, which took place January 24, 1976, two days before the election, and the fact his work habits had been tolerated without complaint for a year and a half.

E. Weeding and Thinning Crew

Here the Board found foreman Jose Rios discriminatorily laid off and refused to rehire Jesus and Elena Solano and Herlinda Avitua, who were among 10 employees laid off January 31, 1976, on account of an alleged work slowdown.

Rios knew the Solanos were active, open UFW supporters when he hired them, according to the testimony of Jesus Solano. Rios claims they were selected for layoff because of low seniority in the case of Jesus and frequent absences in Elena’s case. They started work in October 1975. Elena missed five weeks of work in November to December 1975. The evidence indicates a friendship, or at least mutual respect, between Rios and Jesus, dating back to 1968, but Rios was apparently unfriendly towards Elena. Jesus testified his discussions about the union with Rios were friendly ones. Both were laid off after the election.

Regarding evidence of application for rehire, Rios testified he told laid-off employees to check at his house about availability of work. Some did and were hired. Jesus and Elena testified Rios told them he would call them and never did, and neither reapplied.

The evidence is ambiguous as to the motive for the layoff of Jesus, and conflicting as to whether failure to apply for work was justifiably based on a promise of recall. As to Elena, the evidence is ambiguous. The motivation for her discharge could be her absences or the added factor of Rios’ apparently personal dislike of her.

Herlinda Avitua was apparently friendly with both Rios and Elena Solano, but after the election she claims Rios became unfriendly towards her. As discussed above under “interrogation,” she testified her conversations with Rios about the union were casual and friendly in nature, not intimidating, and she was not laid off until after the election. She had admitted low seniority in the crew and according to Rios was not a particularly good worker. She admits she never reapplied for work.

The testimony of Elena Solano, who overheard most of the alleged interrogations, corroborates other evidence showing Rios and Avitua were friends, as well as corroborating the existence of friendship between Jesus Solano and Rios.

F. Pattern of Discrimination

Here the layoffs and the inability of the alleged discriminatees to find their way back into the Abatti workforce occurred after a bitterly contested union election during which the employer committed such unfair labor practices as denials of access to the union and procuring the arrest of organizers. Against this background, 13 union activists were discharged from the workforce, constituting slightly more than 50 percent of the total employees then laid off. The nonunion workers laid off resecured positions at Abatti but the discriminatees did not (with one exception). Further, 11 of the 13 laid off were the organizing committee in their crews and the only UFW supporters, and all had displayed some union support. Further, with the exception of Avitua and Prieto, the discriminatees were admittedly good workers. The charge of “wasting water” against Ortega was obviously pretext.

G. Conclusion

We conclude the Board findings of impermissible discharge or refusal to rehire are entitled to enforcement. The evidence of wrongful motive is circumstantial, but sufficient. We may not substitute our judgment for that of the Board in its area of special expertise, the assessment of the weight of circumstantial evidence in context.

The Board order is modified by deleting the finding of impermissible surveillance. As modified it is affirmed and will be entitled to enforcement. The cause is returned to the Board for redetermination of the appropriate remedy, if deemed suitable, in light of the change in the order; for back pay proceedings; and for any other proceedings deemed necessary. Neither party shall have costs on this appeal.