Babbitt Engineering & MacHinery, Inc. v. Agricultural Labor Relations Board

152 Cal. App. 3d 310, 199 Cal. Rptr. 445, 1984 Cal. App. LEXIS 1667

• Court: California Court of Appeal
• Decided: February 23, 1984
• Docket: Civ. 26773
• Status: Published

Opinions

Opinion

STANIFORTH, J.

Babbitt Engineering & Machinery, Inc. (Babbitt), seeks review of a final order of the Agricultural Labor Relations Board (ALRB or Board) affirming the administrative law officer’s (ALO) findings that Babbitt and San Marcos Greenhouses, Inc. (San Marcos)¹ had violated the Agricultural Labor Relations Act (ALRA) (Lab. Code, § 1141 et seq.) by (1) refusing to bargain with the United Farm Workers of America AFL-CIO (UFW or the Union), (2) engaging in a discriminatory campaign to refuse employment to former employees of Lewis Gardens, Inc. (Lewis) and (3) discriminatorily terminating three employees who had worked for Lewis. Based upon these findings the Board ordered a number of specific remedies, including payment of back wages to the affected employees. The unfair labor practices were alleged to have been committed by Babbitt after purchasing a nursery business from Lewis on January 21, 1979. Shortly before the sale of the nursery to Babbitt the UFW had won a decisive victory by unanimous vote in a representation election held among Lewis’ employees.

While Babbitt has objected to a number of the ALRB’s findings, the threshold issue concerns the propriety of the ALRB’s determination that Babbitt was the “successor employer” to Lewis and in such capacity violated state labor law and was guilty of unfair labor practices.

Facts

In September 1978, the ALRB had conducted an election among Lewis’ agricultural workers. At that election by unanimous vote the employees designated the UFW as their representative. Thereafter, on January 18, 1979, the ALRB certified the UFW as the exclusive bargaining representative of Lewis’ employees. Lewis had owned this business for many years. Lewis specializing in azaleas also raised and sold a variety of greenhouse plants. By the fall of 1978 Lewis’ business was in bad economic circumstances. While the employees had numbered 46 in March 1970, by late 1978 there remained only a skeleton crew of 6 employees, all members of the Union.

Babbitt is a corporation engaged in consulting and design for heavy tube mills. The corporate stock is owned by Charles Babbitt (Mr. Babbitt). On January 21, 1979 (three days after the ALRB certification of the UFW), Babbitt entered into a sale-purchase agreement with Lewis whereby Babbitt acquired all of Lewis’ common stock. Mrs. Babbitt became president of Lewis, Mr. Babbitt vice president and a third person secretary. These same three persons were also the officers of Babbitt.

By this agreement Babbitt acquired all assets of both Lewis’ Whittier and Vista locations and the land at the Vista location. Babbitt purchased Lewis with the intent to continue the business as a nursery operation. Upon sale six Lewis employees remaining on the payroll continued in their jobs. The nature of the operation remained essentially unchanged. Mrs. Babbitt managed the nursery business, continued azaleas as the major product line even after she discovered they were diseased. She paid the employees on Lewis’ payroll checks until September 1979.

By letter dated January 24 the newly certified UFW wrote Lewis requesting bargaining. Donald Lewis (Mr. Lewis) received this letter and before January 29 showed it to Mrs. Babbitt. Mrs. Babbitt said she was not interested in discussing the union situation. A few days later Mrs. Babbitt flew to San Francisco to consult with the law firm of Bronson, Bronson and McKinnon on this labor matter. She had been advised by Mr. Lewis she should answer the UFW’s request to bargain. Pursuant to legal advice received, Mr. Lewis drafted and sent a letter (dated Feb. 9) to the UFW informing it the business had been sold and the purchaser was seeking guidance concerning the UFW’s request to bargain. Immediately after her trip to San Francisco, Mrs. Babbitt instructed Raul Vega, the person to whom she had delegated hiring authority, to stop hiring. Before her trip Vega had informed her the former Lewis employees were inquiring about reemployment. Shortly after the trip to San Francisco she fired Vega and commenced hiring herself.

On February 16, approximately two weeks after the sale, the UFW wrote directly to Mrs. Babbitt asserting Babbitt was the successor employer to Lewis and demanded to bargain. Following receipt of this letter Mrs. Babbitt again sought and obtained legal advice. Based upon the advice received she sent a letter (dated Mar. 9) stating—without citation of reason—she was not the successor employer and therefore would not bargain. Mrs. Babbitt also made statements about her predicament with the Union. She told one employee that with respect to the Union she had “inherited a bag of worms.” On another occasion she received a telephone call about the Union and commented to the caller “Things are really fucked up around here, and I’m going to get to the bottom of this.”

In the months of February and March approximately 20 former Lewis employees inquired about reemployment.² Of the nineteen new employees Mrs. Babbitt hired in February and March, only three were former Lewis employees; two, the Gastellums, had worked long before the Union election and the third, Larry Montano, was a supervisor. In this factual context the UFW initiated proceeding by filing charges on February 22, March 21 and 28 and June 7, 1979, alleging violations of the ALRA. After the adverse decision by the Board, Babbitt filed this petition for review pursuant to Labor Code section 1160.8.

Discussion

Fundamental to a determination of Babbitt’s contention it did not engage in an illegal discriminatory campaign to hire or to fire former Lewis employees is the threshold question of the duties and obligations under the ALRA, incurred by Babbitt upon purchasing and undertaking the agricultural operations of Lewis. The administrative law officer examined the circumstances surrounding the change in the ownership and Babbitt’s business operations at Lewis and concluded Babbitt was a “successor employer” to Lewis. The Board approved the ALO findings and held Babbitt succeeded to Lewis’ obligations to recognize and bargain with the UFW, the Union that had just been officially certified as the exclusive bargaining representative at Lewis.

The California Supreme Court in San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 874, 863-892 [176 Cal.Rptr. 768, 633 P.2d 964], spelled out with particularity the governing law concerning when a purchaser of an agricultural operation shall be deemed a “successor employer” and thereby obligated to recognize and bargain with the Union. (See also Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 764-765 [195 Cal.Rptr. 651, 670 P.2d 305].) Controlling California cases rely upon federal judicial and administrative National Labor Relations Board (NLRB) decisions in obedience to the Labor Code directive (§ 1148) to “follow applicable [NLRB] precedents.” (See N. L. R. B. v. Burns Security Services (1972) 406 U.S. 272 [32 L.Ed.2d 61, 92 S.Ct. 1571] and Howard Johnson Co. v. Hotel Employees (1974) 417 U.S. 249 [41 L.Ed.2d 46, 94 S.Ct. 2236].)

I.

The Federal Precedents

Neither the California act (ALRA) nor the federal act (National Labor Relations Act (NLRA)) contain any specific statutory provision dealing with the successorship issue.³ 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. (See National Labor Relations Board v. Colten (6th Cir. 1939) 105 F.2d 179.) Since Colten, federal authorities have recognized the fundamental purposes of the NLRB required a new employing entity assume the statutory obligations of a predecessor employer in a great variety of circumstances beyond the technical changeover of ownership involved in Colten.4 Successor liabilities have been imposed as a matter of law where the new employer purchased the entire business of the predecessor. (N. L. R. B. v. McFarland (10th Cir. 1962) 306 F.2d 219) or where the new employer acquires a part or all of the assets of its predecessor. (N. L. R. B. v. Interstate 65 Corporation (6th Cir. 1971) 453 F.2d 269.) And even where the new employer has not acquired any of the predecessor’s assets but simply hired a majority or a substantial number of the employees of the predecessor bargaining unit, i.e., has taken over the workforce only, successorship employer obligations have been imposed. (N. L. R. B. v. Burns Security Services, supra, 406 U.S. 272.)

No single mechanical formula has been devised for determining whether an employer has succeeded to the bargaining obligations of its predecessor. The Supreme Court in Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. 249, 256 [41 L.Ed.2d 46, 53], 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.”

A number of factors, however, 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 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. (See Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. at pp. 263-264 [41 L.Ed.2d at p. 57].)

With regard to workforce continuity, the court in N. L. R. B. v. Burns Security Services, supra, 406 U.S. 272, 294-295 [32 L.Ed.2d 61, 77], stated: “[T]here will be 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 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 . . . .”

Factually Burns involved the take-over of protection services for Lockheed Aircraft Service Co. at a California airport. Burns hired 27 of the previous guards and brought in 15 of its own guards but refused to bargain with the previous union or honor its labor contract. The Supreme Court held when a company hires a majority of its workforce from the recently certified bargaining unit, and these employees continue to perform the same work in the same setting, the successor company is obligated to recognize and bargain with the incumbent union during the same period of time its predecessor was obligated. The Supreme Court said the Burns obligation to bargain with the union over terms and conditions of employment stem from its hiring of a majority of the employee workforce and from the recent election and board certification of the union. The Supreme Court held: “[A] mere change of employers or of ownership in the employing industry is not such an ‘unusual circumstance’ as to affect the force of the Board’s certification within the normal operative period if a majority of employees after a change of ownership of management were employed by the preceding employer.” (N. L. R. B. v. Burns, supra, at p. 279 [32 L.Ed.2d at p. 68].)

The Burns court points out this further rule of law. Where the party is found to be a successor employer and such employer refuses to hire or discriminatorily fires employees because of union affiliation, the employer commits a violation, an unfair labor practice, within the meaning of the act. (NLRA § 8 (a)(3).) The United States Supreme Court in Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. 249, stated the latter rule succinctly. “Of course, it is an unfair labor practice for an employer to discriminate in hiring or retention of employees on the basis of union membership or activity under section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. section 158(a)(3). Thus, a new owner could not refuse to hire the employees of his predecessor solely because they were union members or to avoid having to recognize the union." (Id., at p. 262, fn. 8 [41 L.Ed.2d at p. 56].)

Where such a violation occurs, the remedy of the Board may include ordering of back pay for employees so discriminated against either by discriminatory firing or failure to hire. (Tri State Maintenance Corporation v. N. L. R. B. (D.C. Cir. 1968) 408 F.2d 171, 173; Lab. Code, § 1160.3.)

II.

The California Law

The California Supreme Court in San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 874, concurred in the foregoing principles with appropriate adaptation due to the agricultural labor setting. The San Clemente court defined the principle legal question at issue: “[W]hether San Clemente was obligated to recognize and bargain with the UFW after purchasing Highland’s assets and assuming control of its farming operations. As we have seen, approximately four months prior to the transfer of the ranch’s ownership the UFW had won an overwhelming victory in a Board-conducted election among the ranches employees . . . .” (Id., at p. 886.)

The California Supreme Court recognized there are a “great variety of factual circumstances in which successorship issues may arise, and because of the different legal consequences that may be at issue in different cases, no single, mechanical formula can be devised to resolve all successorship issuesciting Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. 249, 256 [41 L.Ed.2d 46, 53], and in such a context said: “‘[W]e must necessarily proceed cautiously, in the traditional case-by-case approach of the common law. . . .’” (San Clemente, at p. 885.) San Clemente cites the Howard Johnson case additionally for the point “ ‘the real question ... in each of these “successorship” cases is, on the particular facts, what are the legal obligations of the new employer to their employees of the former owner or their representative? . . .’” (San Clemente, at p. 886.)

The San Clemente court faced a factual problem almost parallel to that here presented. The former employer’s assets and business property (as here) continued intact, but a number of employees who had been employed by San Clemente Ranch, Ltd., were not present. Thus the critical question was the number of former employees who are essential to meet the federal precedent requirement of ‘“workforce continuity.’” San Clemente (at p. 888) analyzed carefully the passage from Burns (406 U.S. at p. 295 [32 L.Ed.2d at p. 77]) where the United States Supreme Court said that in some situations “it may not be clear until the successor employer has hired his full complement of employees that he has a duty to bargain with a union” and distinguished the Burns rule: The agricultural setting in San Clemente was not readily equated and not necessarily controlled by the “full complement” discussion of Burns. The California Supreme Court described the typical agricultural setting. There is a high worker turnover in the agricultural business of this state—the employment is of a seasonal nature, the employees migrate throughout the state and the use of farm labor contractors and the “day haul” system is prevalent. (San Clemente, supra, 29 Cal.3d 874, 891.) The California Supreme Court concluded these various factors make the agricultural employee situation and workforce continuity a peculiar question distinct to agriculture in California. “[E]ven when no change in ownership occurs there is quite frequently a significant turnover in the workforce of the agricultural employer during the course of a single year. The California Legislature was, of course, fully aware of this phenomenon when it adopted the ALRA (see Lab. Code, § 1156.4), but nonetheless decided to provide a union which is victorious in a representative election with a one-year certification bar.” (San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 874, 891.)

It is in light of the substantial turnover of an employer’s workforce which is a “unique character of California’s agriculture setting” that the requirement of the hiring of the “full complement” of the employees of the previous employer must be examined and determined.

At the time of the sale to Babbitt the number of Lewis’ employees was at a low ebb (six). Yet, Babbitt before learning of its Union bargaining obligations retained all six of these persons, thus the then total workforce was hired. Babbitt immediately began to increase the number of persons hired; but after being made knowledgeable of the election of the Union to represent the workers the evidence is uncontradicted Babbitt fired Union activists and refused to hire former employees who had been active in the Union.

The ALO’s findings were issued before San Clemente was decided; nevertheless the ALO carefully analyzed the workforce continuity factor in light of federal precedent before finding Babbitt had succeeded to Lewis’ duty to bargain. The ALO intuited the San Clemente, reasoning “full complement” does not necessarily mean “peak employment. ” This premise was patently true in this agricultural setting where seasonal fluctuations in the workforce would result in peak employment not being reached for many months after the change in ownership. Waiting until peak employment was reached to determine a new employer’s duty to bargain could have deprived the agricultural employees of the benefits of representation for a substantial period of time.

The ALO resolved the “full complement” requirement: He 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 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 as a matter best left to the expertise of the Board, should not be disturbed. The Board, while rejecting the ALO’s “overly mechanistic analysis concerning the factor of workforce continuity,” affirmed the ALO’s conclusion.

Looking only at workforce continuity, it is argued Babbitt did not succeed to Lewis’ duty to bargain with the UFW—since a majority of its employees had not worked presale at Lewis. However, the effect of Babbitt’s discharge of Union activist workers and refusal to hire former Lewis unionized employees must be brought into the legal equation. It was and is a controlling, overriding factor in determining this issue.

If it is manifest that but for the employer’s discriminatory refusal to offer employment to the predecessor’s unit employees, the Union would have continued to enjoy a majority representative status, continuity of workforce will be presumed. An employer will not be permitted to rely upon its own wrongdoing and thus avoid its legal responsibilities. “Where such conduct has occurred, continuity of the workforce will be presumed.” (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d 743, 764; N. L. R. B. v. Foodway of El Paso (5th Cir. 1974) 496 F.2d 117, 120; Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. 249, 262, fn. 9 [41 L.Ed.2d at pp. 56-57].) As was succinctly stated in Rivcom: “The issue [‘workforce continuity’] is moot ... in discriminatory-rejusal-to-hire cases. ” (Id., at p. 765, fn. 18; see also 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], 640 F.2d 1100.)

Despite the change of ownership, Lewis’ agricultural operation (except the workforce whose continuity was disrupted by the unfair labor practices [discussed in III and IV, infra]) remained substantially the same, the same business and the same real property and equipment were used. Essentially the same product involved was sold in the same method of operation. The change in ownership brought no alteration in the nature or size of the bargaining unit. In light of this total continuity of the business’ operations under Babbitt and the law-imposed presumption of workforce continuity (see sections III and IV, infra), the ALRB was justified in concluding Babbitt had succeeded to Lewis’ bargaining obligations.

As in San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 874, nothing in the continued representation of the employees of Babbitt by the UFW would in any way conflict with the purposes of the ALRA, and a failure to do so and recognize Babbitt’s duty to bargain would undermine the protections sought to be secured by the ALRA’s election procedures just completed at Lewis.

The ALRB’s findings “shall be conclusive” on review “if supported by substantial evidence on the record as a whole.” (Tex-Cal. Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 345 [156 Cal.Rptr. 1, 595 P.2d 579].) The factual record here fully supports the ALRB’s finding Babbitt is the “successor employer” and should succeed to Lewis’ bargaining obligations.

Ill

The ALO as well as the Board made specific findings of unfair labor practices committed by Babbitt’s discriminatory refusal to hire and discharge of former Lewis employees. The events evidencing the refusal to hire and the discharge of employees occurred within three months of Babbitt’s acquisition of Lewis. Uncontradicted evidence shows these activities took place when Babbitt had knowledge of the Union’s claim to representative status. By letter of January 24, the newly certified UFW wrote to Lewis requesting bargaining. Mrs. Babbitt was made aware of the letter but refused to bargain; instead she twice sought legal advice from a labor law firm. After obtaining legal advice and without statement of reasons she told the UFW (Mar. 29) she was not a successor employer and therefore would not bargain.

In the overall context of a refusal to bargain, does substantial evidence on the record as a whole support the Board’s conclusion John Martinez, Salvador De Casas and Mary Hickey were discriminately discharged in violation of section 1153, subdivisions (a) and (c) of the Labor Code?

A—Discharge of John Martinez

John Martinez was the president of the UFW organizing committee instrumental in securing representation of the UFW. He was a maintenance man working for Lewis since 1976 and had become head of packing and shipping. He also sold plants and drove a van. He was laid off from Lewis along with a group of other employees after the election. Mrs. Lewis was aware of Martinez’ Union activities.

Martinez sought work from Mrs. Babbitt and was rehired February 5 to work at the nursery. When Mrs. Lewis learned of Martinez’ rehire, she told Mrs. Babbitt that with respect to the Union, Martinez had caused trouble. During his one-week tenure under Babbitt, Martinez sold plants to customers and loaded trucks and worked under the direction of Raul and Oscar Vega. He had no authority to fire or hire or to direct work of any other employee. On the morning of February 12, one week after Martinez began work, Mrs. Babbitt called him into her office and terminated him, telling him he was no longer needed.

When Mrs. Babbitt fired Martinez the workforce was a total of 14, 7 of whom were former employees—still a majority of the Lewis workforce. The Board adopted the ALO’s recommendation finding Babbitt had discharged Martinez because of his pro-union sentiments and as part of Mrs. Babbitt’s discriminatory campaign against the Union, seeking to defeat the successorship obligation. Mrs. Babbitt knew of Martinez’ Union activism. She testified Mrs. Lewis told her Martinez was a Union troublemaker. Immediately upon her learning she had hired a Union activist she fired him. The timing is a critical and often conclusive factor in determining whether a discriminatory motive for a discharge exists. (See D. M. Rotary Press, Inc. (1974) 208 N. L. R. B. 366, and cited cases.) From the timing of the discharge the Board was justified in inferring an unlawful motive.

Secondly, Mrs. Babbitt’s statement in justification of Martinez’ firing was his services were no longer needed. This explanation is inconsistent with the record. Martinez had been fired after working but one week. Babbitt was at that time increasing, not decreasing, the workforce.

Finally, Babbitt claimed Martinez was fired because he was observed in a situation indicating involvement in a theft of plants. Mrs. Babbitt testified she saw Martinez loading a truck with the plants. The ALO found based upon testimony of other witnesses (Martinez and Hickey) that this was a fabrication; no such incident had in fact occurred. Where a purely fictional or false rationalization for layoff is tendered, such falsification rationally reinforces the Board’s conclusion the motive for firing was improper. The appeal court in Shattuck Denn Mining Corp. (Iron King Branch) v. N. L. R. B. (9th Cir. 1966) 362 F.2d 466, 470, said: “If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal—an unlawful motive—at least where, as in this case, the surrounding facts tend to reinforce that inference.” The Board could draw such inference here.

Babbitt contests the Board’s finding Martinez was not a supervisor. In support of its contention Martinez was a supervisor, Babbitt argues: (1) Martinez was paid a salary; (2) he was hired to be in charge of sales and shipping; and (3) in making his finding, the ALO only took note of the conditions at the time Martinez was fired, and not the responsibilities he would be taking on when work picked up. According to Mrs. Babbitt, Martinez was hired to be in charge of sales and shipping; he would show the plants to customers, make out invoices, and “supervise” the loading of plants.

Martinez was to be paid a monthly salary of $850. While it is a circumstance to be considered, the fact an employee is paid a straight salary does not establish he is a supervisor. (Filler Products, Inc. v. N. L. R. B. (4th Cir. 1967) 376 F.2d 369, 375.) Martinez testified he sold plants, picked and tagged them, took invoices to the office, then loaded the plants for shipping. With the possible exception of the loading of plants, none of Martinez’ job functions show any indicia of supervision. Martinez had no authority to hire and fire. He had no supervisory authority. He worked under the direction of the Vegas.

The act defines “supervisor” in Labor Code section 1140.4, subdivision (j): “The term ‘supervisor’ means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” This foregoing evidence and the defining statutes are totally supportive of the Board’s conclusion Martinez was not a supervisor and therefore not exempt from the law prohibiting discriminatory discharge.

Finally, Mrs. Babbitt’s statements and various actions authorized the ALO and the Board to reasonably infer an antiunion animus or motive on her part in the discharge of Martinez. For example, immediately following her consultation with the attorneys she ordered Raul Vega stop all hiring and took that control away from Vega. Vega had been the conduit through whom former employees requested reemployment. It could be reasonably inferred she sought to shut the door to unwanted job applicants. Her recited antiunion statements indicated an antiunion animus, an unlawful motive, in the firing.

B—Discharge of Mary Hickey

Mary Hickey worked for Lewis as an office clerk from August 1977 until November 1978 when she was laid off due to lack of work. At the time of the UFW election Hickey had been extremely active in Union activities and was elected secretary of the organizing committee. Her Union activities were well known to Lewis. Shortly after the Babbitt-Lewis purchase-sale was effected, Hickey contacted Mrs. Babbitt regarding reemployment. She was hired and began working February 2. When Mrs. Lewis learned of Hickey’s rehire she (as with John Martinez) told Mrs. Babbitt that Hickey had cáused trouble with respect to the Union. On February 14 Mrs. Babbitt discharged Hickey. When Hickey asked if there was something wrong with her work Mrs. Babbitt assured her there was not, stating only “it was bad timing for Hickey to be working at the nursery.”

The Board adopted the ALO’s recommendation, finding that Mrs. Babbitt’s discharge of Hickey was to contain unionism and was part of Babbitt’s campaign to defeat the workforce continuity requirement for successorship. The Board was also justified in inferring unlawful motive from the timing of this discharge. Immediately after Mrs. Lewis told Babbitt that Hickey was a Union troublemaker, she was discharged. The discharge also came after Mrs. Babbitt’s trip to San Francisco to get legal advice from a labor attorney. She had just turned down the request for collective bargaining claiming not to be the successor employer.

Babbitt points to the other former Lewis employees who remained on the payroll and to the three former employees hired by Mrs. Babbitt. However, the rule does not require the company to discharge all former employees or maintain a workforce devoid of a single employee who had worked for Lewis. It would be sufficient to avoid the obligation if the new employer (without resorting to unfair labor practices as the means) maintained a workforce with less than half the former employees. Mrs. Babbitt’s quoted remark regarding “bad timing” circumstantially points to the intent to avoid the 50 percent former employee level. It is most significant that the three fired, Hickey, Martinez and Salvador De Casas, were very active Union supporters.

Babbitt’s counsel contends there is no substantial evidence to support the conclusion of the Board’s firing was related to an antiunion animus. Substantial evidence supports the conclusion Mrs. Babbitt had knowledge of Hickey’s Union activity. Mrs. Babbitt’s statements as to what Mrs. Lewis told her about Hickey and Martinez being troublemakers and her immediate response belies counsel’s contention. The causal relationship between Hickey’s termination and her Union activity may be inferred from such knowledge and the immediate discharge. (Royal Packing Co. v. Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826, 834-835 [161 Cal.Rptr. 870].) Thus substantial evidence in the record when viewed as a whole support the finding Babbitt unlawfully discharged Hickey.

C—Discharge of De Casas

Salvador De Casas had worked for Lewis since April 1976 doing general nursery work. He was one of the six employees who remained employed through the change of ownership. De Casas was a UFW activist serving as a substitute on the organizing committee. Supervisor Larry Montano was aware of his Union activities and communicated this knowledge to Mrs. Babbitt on the day immediately before she discharged De Casas. Although Montano testified he did not disclose this information concerning De Casas’ activities on the organizing committee to Mrs. Babbitt, he was impeached by his earlier admission to general counsel that he had revealed De Casas’ Union activities to Mrs. Babbitt. Moreover, the circumstances of Montano’s change of story was suspicious. After his revelation to general counsel, but before testifying, he spoke with Mrs. Babbitt. He then came back to the hearing and denied telling Mrs. Babbitt of De Casas’ Union connection. When he was confronted with a change in his testimony he wavered. He admitted labeling De Casas a troublemaker to Mrs. Babbitt.

Two days before discharge, De Casas inquired of Mrs. Babbitt concerning a raise that had been promised by supervisor Raul Vega. Several workers were present during the conversation. Mrs. Babbitt responded to the effect that she, not Raul, was the person who would give a raise. She said she supposed she would give a raise and would speak to each worker the following Monday. The next Monday she called De Casas to the office and gave him no raise but his dismissal check. She claimed the company was not happy with his work. Before that discharge date neither Mrs. Babbitt nor anyone from the company had ever complained about De Casas’ work performance. Mrs. Babbitt in fact admitted she had no criticism of De Casas’ work. Instead, she “got bad vibes” from him during the initial interview. Furthermore she labeled him as a complainer about the difficulty of the work and the length of the work day.

Evidence of Mrs. Babbitt’s knowledge of De Casas’ Union activities comes from the testimony of Montano. The date this information was given to Mrs. Babbitt coincides exactly with the day De Casas was fired. It occurred two days after De Casas and several other employees approached Mrs. Babbitt, De Casas requesting a raise. It occurred during a time when Mrs. Babbitt was being pressed by the Union to negotiate and she was formulating her position that she was not the successor employer. Here again, as with Martinez and Hickey, the timing of De Casas’ discharge gives rise to a rational inference of unlawful motive of antiunion animus.

Furthermore where complaint of work quality was the basis, the lack of warning is a factor traditionally relied upon by the NLRB to prove unlawful motive. (Great Atlantic & Pacific Tea Co. (1974) 210 N. L. R. B. 593.) Mrs. Babbitt did not testify as to any poor work on De Casas’ part. Instead she said he complained too often about working conditions. Thus Babbitt’s position with respect to the cause for discharge shifted from poor work to excessive complaining to finally a position of seeming neutrality. A shifting defense may be an indication of unlawful motive. (Don Pizzolato, Inc. (1980) 249 N. L. R. B. 953.)

The foregoing evidence justified the Board in finding these three discharges unlawful. The record when viewed as a whole shows substantial evidence to support the conclusions drawn by the ALO and support the Board’s order. The recited substantial evidence authorized the Board to draw an inference of a casual nexus between the discharges and Babbitt’s antiunion animus. These three employees would not have been discharged but for their Union activities and the Union activities were a moving or substantial cause for the discharge. (Royal Packing Co. v. Agricultural Labor Relations Bd., supra, 101 Cal.App.3d 826.)

IV

Babbitt next contends the Board’s conclusion Mrs. Babbitt engaged in a discriminatory campaign to refuse to hire former Lewis employees is not supported by substantial evidence on the record considered as a whole. The Board found that but for a discriminatory campaign to defeat successorship, Babbitt would have hired a significant number of former Lewis employees.

While an employer who purchases a business is free to select its own workforce, an employer who refuses, for the purpose of avoiding the union, to hire former employees is guilty of an unfair labor practice. (Howard Johnson Co. v. Hotel Employees, supra, 417 U.S. 249, 262, fn. 8 [41 L.Ed.2d 46, 56].) The new employer cannot avoid successorship status by a discriminatory refusal to hire the predecessor’s workers. (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d 743, 764.)

The evidence when viewed as a whole on this issue reveals: Mrs. Babbitt became aware of the recent UFW certification at the end of January, shortly after the purchase of the business when Mr. Lewis showed her the UFW letter requesting bargaining. She was first, apparently, disinterested but then consulted a labor law firm concerning the obligation to the Union. Mrs. Babbitt disclosed this to the Union through Mr. Lewis. Her first action following her consultation with counsel was to insist Raul Vega stop all hiring. She took control over from Vega who had been approached by former employees seeking employment, thus cutting off the principal source of requests by Lewis employees for jobs. Mrs. Babbitt’s March 9 letter to the UFW unequivocally refused to bargain. In it, she expressed her contention she was not a successor employer. Her antiunion comments she had “inherited a bag of worms,” etc. support a finding of antiunion animus (W. T. Grant Co. (1974) 210 N. L. R. B. 622) as a basis for refusal to hire former unionized employees.

The numerical details of Mrs. Babbitt’s hiring decision lends further support to the Board’s finding she intended to defeat a finding of workforce continuity. At the time of the sale six Lewis employees remained on the payroll. Thus the total workforce was entirely former employees. On January 29 Babbitt hired three new employees. Then six out of nine employees were former employees. On February 2 Mrs. Babbitt hired Hickey and on February 5 Martinez, both former employees. Thus at the beginning of February a majority of Babbitt’s workforce was still comprised of former Lewis employees. It was after this hiring Mrs. Babbitt obtained legal advice concerning successorship duties. She then personally took over hiring. On February 12 she fired Martinez, bringing the total number of employees to 13, 7 of whom were former employees but still a majority. But by February 15 she had hired two new employees. On February 16 she fired Hickey and another employee, Oscar Vega. Of a total of 13 employees, then only 6, or a less than majority had worked for Lewis. And the following two days Babbitt hired two former Lewis employees, the Gastellums (not UFW activists) and she fired De Casas, one of the holdovers. Thus though she hired the Gastellums, only seven out of her employees had previously worked at Lewis. She hired Montano, a former supervising employee, on February 26. In sum, in February and March Mrs. Babbitt hired a total of 19 new employees but only 7 former Lewis employees remained. At the same time, the evidence is 20 former employees inquired about work, only 3 of whom— those mentioned above—were hired. None of the three hired were Union activist or supporters. This hiring picture may be rationally coupled with the firing of the three former employees who were the most active UFW supporters in her employ to support an inference of antiunion animus.

Mrs. Babbitt claims she did not know about inquiries from the 20 former employees seeking employment. Vega testified he told Mrs. Babbitt he was receiving inquiries from former employees. Her response to him was an instruction to stop hiring. A reasonable inference can be drawn she knew inquiries were being made and took immediate steps to prevent hiring.

Hickey specifically named seven former Lewis employees who called inquiring about reemployment. (See fn. 2, ante, p. 318.) Hickey testified she left approximately 10 messages on Mrs. Babbitt’s spindle on her desk concerning these inquiries. A former employee, Van Ginder, telephoned; Hickey informed Mrs. Babbitt the call was from a former employee seeking reemployment. Mrs. Babbitt took the call. It is a fair and reasonable inference Mrs. Babbitt knew about the requests of former employees from several sources.

The Board reinstated an eighth employee, Giron, in addition to the seven named by Hickey as having specifically inquired about reemployment. The Board found Giron entitled to reinstatement because he sought reemployment from Montano and was told by him the former Lewis employees would not be rehired. The rule is well established that an employer is responsible for the antiunion statements or acts of their supervisors whether or not the acts are specifically authorized. (National Labor Relations Board v. LaSalle Steel Co. (7th Cir. 1949) 178 F.2d 829, cert. den. 339 U.S. 963 [94 L.Ed. 1372, 70 S.Ct. 996]; Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 320, 322 [172 Cal.Rptr. 720, 625 P.2d 263].) Babbitt is responsible for Montano’s statement.

The ALO found Montano’s denial of this statement to Giron untrue. This credibility resolution is neither patently incredible nor inherently improbable. It must be accepted by this court. (Perry Farms, Inc. v. Agricultural Labor Relations Bd. (1981) 86 Cal.App.3d 448, 463-464 [150 Cal.Rptr. 495].)

V

The Remedy

Having approved the ALRB’s finding Babbitt guilty of unfair labor practices, we must now determine the propriety of the ALRB’s remedial order.

An employer, who engages in a campaign of refusal to hire or fire its predecessor’s employees for the purpose of defeating a successorship finding and its concomitant obligation to bargain, commits an unfair labor practice. Such conduct may authorize a Board’s order to reinstate, with back pay, the predecessor’s employees who were objects of the discrimination. (Lab. Code, § 1160.3; Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 862 [176 Cal.Rptr. 753, 633 P.2d 949]; Polynesian Cultural Ctr., Inc. v. N. L. R. B. (9th Cir. 1982) 582 F.2d 467, 475; Alfred M. Lewis, Inc. v. N. L. R. B. (9th Cir. 1982) 681 F.2d 1154, 1156.)

Babbitt argues the “make whole” remedy ordered here is contrary to law, citing J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1 [160 Cal.Rptr. 710, 603 P.2d 1306]. The order requires Babbitt and San Marcos to: “Make whole all of their agricultural employees . . . for all losses of pay and other economic losses sustained by them as a result of Respondents’ refusal to bargain with the UFW as such losses have been defined in Adam Dairy dba Rancho Dos Rios (Apr. 26 1978) 4 ALRB No. 24, as modified by Ranch No. 1, Inc. (July 14, 1980) 6 ALRB No. 37, for the period from February 22, 1979, until such time as Respondents commence good-faith collective bargaining with the UFW which leads either to a contract or a bona fide impasse.”

Section 1160.3 of the Labor Code expressly permits the Board to issue an order requiring the employer to make its “employees whole, when the board deems such relief appropriate, for the loss of pay resulting from the employer’s refusal to bargain . . . .”

The make-whole remedy may not be ordered in every case where an employer’s refusal to bargain had been found. The “per se” rule previously followed by the ALRB was reversed by the Supreme Court in J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1. Norton had filed a challenge to the validity of the representation election, in which the UFW had emerged as winner. The challenge was denied by the Board, which then certified the UFW. The employer had no right under the act to obtain direct judicial review of the Board’s decision to certify a union. Norton refused to accede to the Board’s decision, refused to bargain with the UFW, and the union filed an unfair labor practice charge against the company. The Board found Norton guilty of a refusal to bargain, ordered Norton to make whole its employees for any loss of pay suffered because of the refusal. Norton then sought judicial review of the Board’s, certification of the UFW.

The Supreme Court upheld the validity of the election and certification of the UFW but declared the Board’s per se application of the make-whole remedy improper. The cause was remanded for a determination whether the remedy was appropriate under the facts of the case. The Supreme Court reasoned judicial review, as a check on arbitrary administrative action and a protection of the integrity of representative elections, was necessary for the proper functioning of the act. While the make-whole remedy is properly imposed when the election challenge is frivolous or not in good faith, the “blanket rule for the application of the make-whole remedy does not provide a sufficient guarantee that the integrity of representation elections will be preserved.” (J. R. Norton Co., supra, 26 Cal.3d at p. 35.)

Second, the Supreme Court looked at the language of Labor Code section 1160.3 authorizing the make-whole remedy when the Board “deems such relief appropriate. ” By its per se application of the remedy, the court held, the Board rendered the quoted language surplusage. The language of the section and its legislative history “reveals the Act did not intend make-whole relief to be applied on an across-the-board basis.” (J. R. Norton Co., at p. 38.) Norton requires the Board to “examine the facts and equities of each particular case” (id., at p. 38; fn. omitted) before it orders make-whole relief.

Babbitt argues the Board here did not fulfill this requirement. The ALO, in considering the remedy’s appropriateness, stated: “Having concluded that Respondents violated their duty as successors to bargain with the UFW and having found this refusal to be tinged with anti-union animus, make-whole relief is clearly appropriate.” Norton does not require a written statement of reasons for the remedy’s appropriateness; rather, the Board must determine whether it is appropriate.

Under the facts of this case, the remedy is appropriate.

The court in Norton couches its test for the suitability of the remedy in terms fitting the context of that case, a “technical refusal to bargain.” “On remand, the Board must determine from the totality of the employer’s conduct whether it went through the motions of contesting the election results as an elaborate pretense to avoid bargaining or whether it litigated in a reasonable good faith belief that the union would not have been freely selected by the employees as their bargaining representative had the election been properly conducted.” (J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 39; italics added.)

The Norton court’s primary concern is with the employer’s good faith— did the employer have a reasonable, good-faith belief its actions were in keeping with the policy of the act. The Norton decision required the Board to determine whether Babbitt had a reasonable good-faith belief it had not succeeded to Lewis’ duty to bargain with the UFW, or alternatively whether its position was pretextual, taken only to avoid having to bargain with the Union. This precise question was explicitly decided by the Board’s .finding Babbitt had engaged in a discriminatory campaign against former Lewis employees and to avoid successorship obligations to bargain. Had Babbitt a good-faith belief it had no duty to bargain with the UFW, it would not have engaged in acts designed to defeat a finding of successorship.

Finally, Babbitt relies upon San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 874, the California Supreme Court’s first successorship case under the act. The San Clemente court set aside the Board’s make-whole order and remanded the cause for consideration in light of Norton. Babbitt argues, it, like the employer in San Clemente, did not believe it had succeeded to its predecessor’s duty to bargain, so the make-whole order in this case should also be set aside.

The Board’s decision in San Clemente was made before Norton had been decided. The Board’s decision in the instant case was made over two years after Norton was decided. No unknowing application of the per se rule was involved here. Further, in San Clemente there was no finding of bad faith on the employer’s part—the contest was solely a legal question of successorship; San Clemente had not engaged in discriminatory actions designed to defeat a finding of successorship as found here. “The Board in its presumed expertise must be given relatively free reign in determining which remedy will best effectuate the policies of the act. It is only when the remedies ordered by the Board are patently outside the Board’s authority that a reviewing court can interfere. ” (Jasmine Vineyards, Inc. v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 968, 982 [170 Cal.Rptr. 510].) The Board’s maké-whole award fulfills the requirements enunciated in Norton. As it cannot be said the Board was “patently outside” its authority in ordering make-whole relief in this case, the order should not be disturbed on appeal.

The order of the Board is affirmed;⁵ the cause remanded for compliance hearing pursuant to the make-whole portion of the order under review.

Butler, J., concurred.

1 Babbitt changed the corporate name of the nursery on July 9, 1979, from Lewis Gardens, Inc., to San Marcos Greenhouses, Inc., some seven months after the purchase and several months after the discriminatory hirings and firings subject of this proceeding.

2 Specific evidence was introduced showing the following former Lewis employees requested employment but were never hired: Patricia Dal torio, Coronado Luna, Andres Gonzales, Reynaldo de Casas, Larry Montano, Pedro Gonzales, Socorro Vega, and Dorothy Van Ginder. Further, Duayne Giron, a former Lewis employee, inquired of supervisor Larry Montano concerning reemployment. Montano responded that Giron could not be hired because of his status as a former Lewis employee.

3 But see the amendment to 1127 Labor Code in 1976 which defined a successor clause as in collective bargaining agreement in subdivision (c) of that provision but stated: “This section shall not apply to . . . any employer who is subject to the National Labor Relations Act [or the] Agricultural Labor Relations Act of 1975 . . . .”

4 Babbitt purchased the Lewis business assets through purchase of stock. The NLRB and our courts have treated as irrelevant the question of whether the transfer of employees and business took place technically by merger, consolidation, purchase of stock, purchase of assets, lease of assets, or some other form. These are matters which are usually governed by corporate or tax considerations rather than labor considerations. (Gorman, Basic Text on Labor Law, Unionization and Collective Bargaining, p. 119.) (See N. L. R. B. v. Wayne Convalescent Center, Inc. (6th Cir. 1972) 465 F.2d 1039.)

5 The ALO—for reasons not clear—found San Marcos was the alter ego of Babbitt. This conclusion is not necessary or relevant in any way to this court’s, the Board’s or the ALO’s determination Babbitt is the successor employer to Lewis. The factual situation presented in this case does not call into play the rules for determination of alter ego status of San Marcos. As the record shows there was a change of name several months after the refusal to bargain and discriminatory firing/hiring occurred. There certainly may be an appropriate factual context in a case for the application of the alter ego doctrine. (Hood Industries, Inc. (1980) 248 N. L. R. B. 597) But this case does not call for such a finding and therefore it should be disregarded. Babbitt and San Marcos are parties to this proceeding, both are bound by the decision of the Board and this court. Counsel for the employer assures us that neither “Babbitt nor San Marcos or the principals may try to hide funds or transfer them back and forth or otherwise avoid responsibilities through corporate machinations.” We take counsel at his word and find no relevance or need for application of the alter ego doctrine. Under the NLRA an employer committing an unfair labor practice cannot avoid a remedial order simply by changing its corporate form. The order could be issued directly to the alter ego as well as the wrongdoer itself on a theory of agency, alter ego or successorship. The same rule would certainly apply to cases, if factually warranted, arising under the ALRA. (National Labor Relations Board v. Hopwood R. Co. (2d Cir. 1938) 98 F.2d 97, (2d Cir. 1939) 104 F.2d 302, 304; and Walling v. Reuter Co. (1944) 321 U.S. 671 [88 L.Ed. 1001, 64 S.Ct. 826].)