# Petition — Riverbend Farms, Inc. v. Agricultural Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1389%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 972 ## Text } Uitice - PTLED. | 83-1315 FILED : FEB 8 1984 — No. 83- men a IN THE pen Court of the Gnited States OCTOBER TERM, 1983 RIVERBEND Farms, INc., Petitioner, vs AGRICULTURAL LABOR RELATIONS BOARD, and UNITED FARM WorKERS OF America, AFL-CIO, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF CALIFORNIA Betry SOUTHARD MURPHY Counsel of Record EvAN JAY CUTTING ELIZABETH R. Moore BAKER & HOSTETLER 818 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 861-1500 THOMAS M. GIOVACCHINI CAMPAGNE AND GIOVACCHINI Airport Office Center 5110 E. Clinton Way Suite 117 Fresno, California 93727 (209) 255-1637 Counsel for Petitioner, RIVERBEND FARMS, INC. SS PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-8203 i QUESTIONS PRESENTED FOR REVIEW Does a state administrative agency violate a person’s constitutionally protected due process rights when— after the close of the evidentiary record and without giving notice or providing an opportunity to be heard— the agency: (a) adds the person as a defendant; (b) simultaneously inserts into the complaint allega- tions against the person; (c) finds that the person acted in “bad faith”; and (d) imposes on that person liability for damages amounting to hundreds of thousands of dollars. ii TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ................. i EE ccc cliccecbcbecccecoerccecse iii EEE AE ee 1 cite wcandutbebsssobeccewes ce ena 2 CONSTITUTIONAL PROVISIONS INVOLVED ..............- 2 ee a ee peseenwoseess 2 REASONS FOR GRANTING THE WRIT .................--- 10 ed. cee btvovenseee 19 APPENDIX California Supreme Court Opinion, October 17, 1983 la California Fifth Appellate District Court of Appeal Opinion, October 25, 1982 ..................005, 38a California Agricultural Labor Relations Board Deci- sion and Order, August 17, 1979 ................ 99a California Agricultural Labor Relations Board, Deci- sion of Administrative Law Officer, June 13, 1979 125a Ventura County Municipal Court, Findings of Fact and in Areneg 4 Law, yee Mt. 5s ce Niivwabesd 18la Ventura County Municipal Court, Judgment, April 25, ee ee hc wes waccéusenees 201la California Supreme Court Order Denying Rehearing, November 16, 1983 .............. Wied je eonwaaes 208a California Supreme Court Decree Enforcing The ALRB Order, November 17, 1983 .............. 209a Labor Relations Act, California Labor Sin civubigimictdbcdebabus wd eod 210a TABLE OF AUTHORITIES CASES: Page Federal: Anderson Nat. Bank v. Luckett, 321 U.S. 233 (1944) . 11 Armstrong v. Manzo, 380 U.S. 545 (1965) ........... 11 Baldwin v. Hale, 68 U.S. (1 Wall.) 223 (1864) ........ 11 Best v. Humboldt Placer Mining Co., 371 U.S. 334(1963) 11 Boddie v. Connecticut, 401 U.S. 371 (1971) ......... 11, 18 Bogart v. Southern Pacific Co., 228 U.S. 137 (1913) .. 18 eee eee eee eee eee eee eee eee ee ee eee ee Coe v. Armour Fertilizer, 237 U.S. 413 (1915) .. 11, 14, 15 Dews Construction Corp., 246 N.L.R.B. 945 (1979)... 14 FCC v. Pottsville Broadcasting Co., 309 U.S. 134(1940) 12 Fuentes v. Shevin, 407 U.S. 67 (1972) ............. 11, 12 Comms C. Shearer Exhibitors Delivery Serv., 246 -L.R.B. 416 (1979), enforced 636 F.2d 1210 (3rd ey EE. nc canbah apdaen Daweh ekees pte ekesdoe 14 Grannis v. Ordean, 234 U.S. 385 (1914) ............. 10 Goldberg v. Kelly, 397 U.S. 254 (1970) ............. 11, 12 Greene v. Lindsey, 456 U.S. 444 (1982) .............. 10 Hillside Manor Health Related Facility v. NLRB, 697 © F.2d 294 (lst Cir. 1982), enfg 257 N.L.R.B. 981 CEA. 6 Pin otinus dda as dere e chine eee s taean sats 17 Hovey v. Elliot, 167 U.S. 409 (1897) ............655. 11 In re Ruffalo, 390 U.S. 544 (1968) ............ 12, 15, 16 Joint Anti-Fascist Refugee Committee v. McGrath, 341 Se ED anda db cima dene edinvsteeeeas 12, 16 Kwock Jan Fat v. White, 253 U.S. 454 (1920) ........ 12 Londoner v. Denver, 210 U.S. 373 (1908) ............ ll Louisville & Nashville R. Co. v. Schmidt, 177 U.S. 230 SR ac okt cuba vctcMa nhi inten veiineteas ds 11 Marine Machine Works, Inc. , 248 N.L.R.B. 1081 (1979), enforced 635 F.2d 522 (5th Cir. 1981) ............ Mathews v. Eldridge, 424 U.S. 319 (1976) .......... 11, 16 iv Table of Authorities Continued Page Morgun v. U.S., 304 U.S. 1 (1988) ................ 11, 12 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. SUED his pucbueeiawss i codeaie cudeneime concn 11 N.L.R.B. v. Complas Industries, Inc., 714 F.2d 729 (7th PME os btthnds 0 405.ce banneeeukbe vacdnieeds 16, 17 Whe v. Jordan Bus Co., 380 F.2d 219 (10th Cir. pieces v. Taylor, 451 U.S. 527 (1981) ............. 11, 13 Opp Cotton Mills v. Administrator of Wage and Hour Division, 312 U.S. 126 (1941) ................05. 11 Rowen Ee) ih me beimpriet sd sales = 17 Schroeder v. New York, 371 U.S. 208 (1962) ......... 11 Sniadach v. Family Finance Corp, 395 U.S. 337 (1969) 11 Sosna v. Iowa, 419 U.S. 893 (1975) ......... 2. eee eee 13 U.S. v. Illinois Central R. Co., 291 U.S. 457 (1934) 11, 13 Windsor v. McVeigh, 93 U.S. 274 (1976) ........... 11, 13 Wolff v. McDonnell, 418 U.S. 589 (1974) ........... 12, 17 ’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) ...... Rape PRA Me PERS PR Ee 14 State: Highland Ranch v. ral Labor Relations Board, 29 Cal. 3d 848, 6 Cal Rptr. 758 (1981) val ehiae 5 San Clemente Ranch, Ltd. v. ral Labor Rela- tions Board, 29 Cal. 3d 874, 176 Cal. Rptr. 768(1981) 5 STATUTES: Federal: a REED s ” YF a ee} + 50a . And that presented a real problem to me, because ployees wold net hove the in the way this lease was x“ vamaiecon y so leven demidones ee nll do eat ee at hae Harris had applied this management principle before to busi- nesses he had taken over which also had been losing money. The Board rejected this business justification on the ground that the decision to apply the principle was not a good decision because Harris had insufficient information regarding the workers at the farm to conclude that they would be a source of resistance to the changes he proposed, and the fact that Harris applied the management principle in the past to smaller farms did not justify its application to the Rivcom operation because it was a larger enterprise. However, there is no significance in the fact that Harris had never applied the management principle to a ranch as large as this one. Furthermore, Harris had inspected the ranch and had seen the type of farming the workers had done. The changes he wanted to make were significant, including the elimination of housing. He therefore had substantial knowledge of the work- . ers’ experience and to what extent they would have to change. The elimination of the farm housing itself would make Harris’ expectation of resistance reasonable. Harris offered the testimony of Dick Richardson, a self- employed custom farmer, who testified that he had assumed management of ranches in the past which previously had been poorly operated, and learned from those experiences that it was best to have a crew with whom the farmer is familiar and a crew the farmer can trust to do the job. Richardson’s testi- mony provides substantial support for the reasonableness of Harris’ adherence to his management principle in the following exchange: If in Ri oh Sie et raat Re Soret make in an effort cash ren = vpyg Bet oo lease(?) ¥ “I would then try to do something to get the valencia trees down to a height that is readily pickable and meets with Cal-OSHA’s standards as far as mip ert ick them off a 16-foot ladder. And I would put ail of the blocks under non-tillage within a year’s time. “I have found my own practices, my own opera- tion, that furrough [sic] irrigation and cultivation are the most expensive and time-consuming, labor-consuming techniques used on a farm in this day and age. “In my own operation, I have taken on several ranches thet being cult mo yee clirrigated ee ing vated, sic , excessively high trees, and have, by — — orchards _ sprinkler irrigation, vation, trimming the trees, have been able to cut ximately two-thirds of my labor expense, of m expense, and have boen abe te out come of may oidhinn enpense 52a Richardson was hired to farm land by the owners and had the choice of retaining or not retaining former employees. The choices he had to make were indistinguishable from those which confronted Harris, and Richardson’s testimony provides direct support for the substantiality of the management princi- ple and stands uncontradicted and unimpeached on the record. Harris had visited the farm, observed the former employees during work hours, observed the various farming techniques which he believed needed changing, discovered the presence of the labor camps on the property, and reviewed the farm’s operating statements. Based upon this information, Harris reasonably could have concluded that the extent of the changes he would have to make were sufficiently great to make it likely that there would be problems in getting the former employees to adjust to the changes. The management principle is given additional support by the fact that Harris, as manager of Riverbend, was employing his own workers who were familiar with some of the changes he intended to make at the farm and who were of demonstrated efficiency. The only reasonable conclusion from these circumstances is that the use of River- bend employees would make his initial operation of the farm much easier. The Board was not justified in rejecting Harris’ decision to apply his management principle on the grounds of reasonableness. The Board also rejected this justification because of two alleged inconsistencies. First, Harris retained two former su- pervisors of Rancho Sespe on his payroll as consultants. The Board apparently reasoned that if the only basis for Harris’ refusal to hire the predecessor employees was because the ranch was a failing business, there was no reason for Harris to retain part of the managerial staff. (V.L.R.B. v. Foodway of El Paso (5th Cir. 1974) 496 F.2d 117.) However, Harris ade- quately explained why these two former supervisors were hired; he testified that they were acting as consultants for Rivcom on a temporary basis to help locate property lines, irrigation systems, pipelines, wells, easements, etc., until the transition of the business could be completed. The two former 7 53a supervisors did not have any managerial or supervisorial capacity at the Rivcom ranch. Evidently, the ALO credited this testimony of Harris. The only reasonable inference which can be drawn from this record is that Harris’ retention of the two former supervisors in a consulting capacity, considering the size of the farm and considering the fact the ALO did not reject Harris’ explanation, was not inconsistent with his stated purpose. The second inconsistency noted by the Board concerned Harris’ failure to inquire into the qualifications of the former employees. However, Harris testified that a substantial reason for not hiring the former employees was that he be- lieved the changes he intended to make would create resist- ance among the former employees, and that those changes would be more effectively accomplished if he used a labor force with whom he was familiar and had employed in the past. The testimony of Richardson supports the reasonableness of these reasons. Harris’ failure to implement a screening process was also consistent with several of his other stated justifications. The Board’s rejection of this justification on the ground of inconsistency is not sustainable. The Board also stated that the management principle was an insufficient justification of Harris’ conduct on the grounds of policy, stating: “We further note that such a management practice ma conflict with the Act’s of cisesesnaton chable \dher relations, and will y result in a refusal to hire This statement does not reject the sufficiency of the man- agement as a justification; the statement indicates that the was not ruling on whether the management principle conflicts with the Act and cannot support the Board's rejection of this justification. The ALO expressly rejected the sufficiency of this justifica- tion, saying: Pca ea eer yn ge ey nah nmngn " 3 54a ployees because they would resist new ways of doing things, and that Harris therefore decided to hire his own long-time loyal employees whom he could trust and who{m] he had pro full-time employment, are oppo- site sides of the same coin. The first contention is, by its nature, irrefutable. But it must be rejected as a defense to an unfair labor practice charge. If it were to be acce 4 Section 1153(c) would lose much of its force. Any employer could then decide that it, too, believed in the practice and therefore had no obligation to consider former employees because their very status as former —— be an absolute bar to employment. Such a defense is simply not substantial e to overcome the well established labor law principle that all applicants for employment must be considered in a non-discriminatory manner. Phelps-Dodge v. NLRB, 313 U.S. 177 (1941). It would indeed be ironic if experience, rather than being an asset to an applicant, were to disqualify him from further con- sideration. A similar defense was summarily rejected in aa v. Foodway of El Paso, 496 F.2d 117 (5th Cir., a The Board has the discretion to reject an asserted business justification “even if the employer introduces evidence that the conduct was motivated by business considerations.” (Great Dane Trailers, supra, 388 U.S. 26, 34.) We disagree with the sufficiency of the ALO’s reason for rejecting Harris’ justification on policy grounds that such a justification is irrefutable. A proponent’s assertion of the man- agement principle as a justification certainly may be rejected upon the facts of a case. His conduct could be inconsistent with his stated purpose. (See N.L.R.B. v. Foodway of El Paso, supra.) The circumstances of a case may be analyzed to deter- mine whether it is appropriate to apply the management prin- ciple and the Board may reject the application of the principle if an employer fails to show that he is going to make substantial changes in the operation of a business which could be expected to be met with resistance by former employees. Or, if an —ee ae management principle in the past when 4 run applied the for the first time in taking over ——— ee 55a operated by union employees, the Board could draw an in- ference that the employer was asserting the management prin- ciple as a justification in bad faith and was motivated by an antiunion animus. Obviously, the assertion by an employer that his conduct was based upon the management principle is not the type of defense which is immune from review by the ALRB. Applicable NLRB precedents have repeatedly remarked on the difficulty placed upon a union when it has to prove that an employer is subjectively motivated by antiunion animus. That difficulty exists with almost every business justification asserted by management. If the Board were allowed to reject the business justification on the ground that it is difficult to refute, the Board would have the power to reject arbitrarily any business justification offered to explain employer conduct, and in turn that rejection by the Board would be unreviewable. The second reason given in the quoted portion of the ALO’s decision for rejecting the management principle as a justifica- tion on policy grounds is that it is not substantial enough to overcome the principle that applicants should be considered in a nondiscriminatory manner. This reason refers to the defense as construed in the preceding sentence, that the management principle is an abstract defense unrelated to the circumstances of a case and is unreviewable. But the management principle is not necessarily irrefutable; the Board may reject the principle as a justification in cases where no substantial changes are intended to be made in an organization, where there is no likelihood that the changes would be met by resistance, or where other circumstances indicate that the employer is asserting a principle in bad faith. Also, there is a substantial basis for the application of the management principle in this case. The policy reasons given by the ALO for refusing to accept the application of the management principle as a busi- ness justification are insufficient to uphold the Board’s determination. 3. Petitioner Rivcom contends that in hiring an entirely new work force it followed its established practice when taking * . 56a over a new business and urges that the fact that this hiring pattern was followed tends to negate an inference that peti- tioners acted with antiunion animus. The uncontradicted testimony of Harris established that his past practice when he took over a new business was to fire the predecessor's employees and hire his own workers to run the operation; he testified he did this in 1973 when he acquired the Clovis Citrus Packing Company, in 1976 when he purchased an 80-acre ranch, in 1969 when he purchased a 150-acre ranch, and in 1977 when he purchased a 40-acre ranch; none of the prede- cessors’ employees had any union involvement whatsoever in the above examples. Under NLRA precedent, the fact that an employer treats union employees no differently from nonunion employees under similar circumstances tends to establish that such treatment was not motivated by antiunion animus. (Pel- legrini Bros. Wines, Inc. (1979) 239 N.L.R.B. 1220.) Respondent attempts to distinguish the cases cited by peti- tioners on the ground that the cases involve individual work- ers; however, the issue is the motivation behind the action of the employer and not the number of workers affected by the decision of the employer; also, the cases cited by petitioners may not be distinguished on the ground that the employers had a good cause for discharging the workers; while an employee may be discharged for good cause, bad cause, or no cause, the relevant question is the motivation of the employer in taking the action against an employee (Lippincott Industries, Inc. v. N.L.R.B. (9th Cir. 1981) 661 F.2d 112, 114-115) and not whether the decision of the employer is a good management decision. Because the Board and the ALO did not reject Harris’ testimony regarding his past practices on the ground that Harris was disbelieved, the testimony by Harris must be ac- cepted as true by this reviewing court. Harris’ testimony con- cerning his past practices constitutes substantial evidence which tends to refute the inference that his conduct was moti- vated by antiunion animus. 4. Petitioner Rivcom asserted at the hearing that it did not hire the former Rancho Sespe workers because Riverbend’s 57a employees were better qualified in that they constituted a skilled, competent work force familiar with petitioners’ opera- tions. The Board rejected the above justification on the ground that the workers employed by Rivcom had not worked for Riverbend for a substantial amount of time, none for more than two years, and as a second ground for rejecting this justifica- tion, the Board noted that Rivcom employed 13 people who had never worked for Riverbend. The ALO rejected the above justification on the ground that Rivcom’s new workers had not been employed by Riverbend for very long and there was inadequate evidence to establish that Riverbend’s employees were any more skillful than the former employees of Rancho Sespe. However, there is uncontradicted evidence in the record to establish a difference between the methods used by Riverbend employees and methods used by former Rancho Sespe employ- ees. One difference is in methods of harvesting, such as use of forklifts to pick across the rows, each employee working with his own bin and keeping count of the amount of fruit picked, and being paid on a piece rate, not an hourly rate. Harris testified that Rivcom’s method of harvesting in this fashion “can im- prove efficiency anywhere from 40 to 50 percent.” Robert Gonzales, a former Rancho Sespe foreman, testified that there 58a With the exception of temporary laborers, Rivcom’s work- ers had all worked for Riverbend for a minimum of three months and a maximum of two years, which is a substantial amount of time to become familiar with Riverbend’s general method of conducting farm operations and with Riverbend’s supervisors. The employment with Riverbend indicated to Harris that Rivcom’s employees were able to perform efficiently the general type of work he anticipated would be performed at the ranch. The only reasonable inferences to be drawn from these facts are that Harris, as manager of River- bend, was able to evaluate the past work performance of Riverbend employees, that those employees were familiar with Harris’ general methods of work, and that his employees were more familiar with and more skilled in the harvesting and pruning methods used by Harris. The record is silent as to whether Riverbend employees are familiar with other in- tended changes in methods to be utilized at the farm, including irrigation techniques, frost protection, weed eradication and the plans to initiate the cultivation of geraniums, vegetable row crops and Satsuma oranges. Obviously, petitioner Rivcom was entitled to select workers on the basis that they were more familiar with only some of the methods and changes Harris intended to make at the newly acquired farm. The Board was in error in determining that Rivcom employ- ees were not more skillful or familiar with the harvesting and pruning activities they were to perform at the Rivcom Ranch. The Board did not err in determining that petitioners failed to The Board also refused to credit petitioner’s justification because Rivcom employees had not had long service with Riverbend; however, with the exception discussed below, all of Rivcom’s employees had worked for Riverbend for a minimum of three months; half had worked for Riverbend for more than a year; this amount of time is substantial in view of the seasonal nature of the farm work. The only reasonable inference to be drawn from the record is that Rivcom’s employees were expe- rienced in Riverbend’s methods of farm work and it must be concluded that Harris had a substantial opportunity to evalu- ate the Riverbend workers. The short length of service of some of Rivcom’s employees with Riverbend does not provide sub- stantial evidence to support the Board’s rejection of petition- er’s justification. As mentioned above, the Board in rejecting petitioners’ justification also noted that Rivcom hired 13 people to work on the Rivcom ranch who had never worked for Riverbend be- fore. Harris testified that the 13 inexperienced workers were temporary help until Riverbend employees became available; they were hired to help with the prevention of frost damage to orchards; it was petitioner’s burden to establish that the 13 workers were experienced with the frost prevention techni- ques which Rivcom utilized and there is no evidence regarding the experience of the 13 temporary workers. Because petition- er did not meet the burden of establishing that the temporary employees were experienced, it must be inferred that they were inexperienced at frost protection techniques. However, any inference of improper motive or inconsistency is dissipated because the application of petitioner’s management rule of not hiring any workers of its predecessor would eliminate former Rancho Sespe workers from consideration for temporary em- ployment irrespective of their qualifications. We conclude that the hiring of the 13 inexperienced workers does not create an inference of antiunion animus and does not constitute an in- consistency which would justify the rejection of petitioner's justifications. 60a Respondents argue that the finding in N.L.R.B. v. Houston Distribution Serv., Inc. (5th Cir. 1978) 573 F.2d 260, wherein an employer took over a new business and refused to rehire the former employees of its predecessor, applies to this case. The NLRB found in the Houston case that the fact that the employ- er failed to inquire about the qualifications of the former em- ployees was inconsistent with the employer’s stated purpose of having only skilled workers in the new business. The case is distinguishable; here, petitioners had an existing labor force of their own with which they could farm Rivcom Ranch. As discussed above, the labor force was familiar with petitioners’ farming methods and operation techniques and could be used more efficiently in farming the property. There was no need to hire additional permanent employees. Petitioners in essence simply transferred their employees from one farm to another. Since no new hiring occurred, there was no reason to take applications or screen the former employees of the farm. In contrast, the employer in the Houston case, supra, did not have an existing labor force which it transferred to operate the new business, nor a substantial business justification compara- ble to that of petitioners, and could not explain away the inconsistency between its conduct and the stated purposes. Here, petitioners also had a justification which was consistent ~ with not inquiring into the qualifications of the former employ- ees of the farm, which is the management principle discussed above. Even if the refusal to consider former Rancho Sespe employees was not justified on the grounds of efficiency, it could be justified pursuant to the management principle. Therefore, that priaciple explained away any apparent in- consistency. We conclude that petitioners’ refusal to consider former employees of Rancho Sespe for employment is not inconsistent with petitioners’ justifications and did not con- stitute grounds for rejecting said justifications. 5. The Board rejected petitioners’ contention that the radical operational changes Harris intended to make required that Riveom employ workers it knew to be efficient. The Board held that the changes proposed involved preharvest activities with which Riverbend employees were unfamiliar and that 6la Harris was not interested in farming the Rivcom ranch but only wanted to obtain the fruit products. There was uncontradicted evidence in the record that in several areas Harris intended to change substantially the operating procedures at the farm in terms of degree. Harris intended to change the irrigation methods from a high water volume operation using a furrow to a low volume system of sprinkler and drip. The ALO found that 60 percent of the ranch used high volume irrigation. The former manager of the farm testified that he was using low volume irrigation methods to some degree and converted some acreage each year from high to low volume, and would have converted more if more work- ing capital were available. It would seem that Rivcom’s plan for irrigation did not involve the implementation of an entirely new system which was completely unknown. The second area in which petitioner intended to make sub- stantial changes concerns the use of chemical methods in con- trolling weeds. The record supports the ALO’s finding that these techniques were being used on almost 78 percent of the acreage at Rancho Sespe. Lombard testified thzt the other 22 percent of the acreage required the use of cultivation techni- ques in order to retard soil erosion. Therefore, Harris’ plan to implement chemical methods of weed control at the farm was substantially in effect, but required that a considerable portion of the acreage be converted. Rivcom’s pruning and harvesting methods had not been used before at the ranch. Harris also intended to eliminate the labor housing and convert that area to farming acreage, to introduce geranium and vegetable crops, and to pack avocados in the field instead of transporting them to a packing house. The only reasonable inference which can be drawn from the record is that petitioner intended to make substantial changes at the farm. The Board’s rejection of petitioner’s justification based on the extensive changes to be made, on the ground that River- 62a bend’s employees would be no more efficient at adapting to the changes than the former workers at Rancho Sespe, has been discussed above and as concluded before, the Board’s reason is not supported by the record. Rivcom’s employees had worked for Riverbend for a minimum of three months and a maximum of two years; that employment with Riverbend indicated to Harris that Rivcom’s employees were able to perform efficiently the type of work he anticipated would be required to be performed. The only reasonable inference again to be ¢rawn from these facts is that Harris as manager of Riverbend was able to evaluate the work performance of the Riverbend em- ployees. The record shows that Harris’ employees were expe- rienced in some of the new methods he intended to implement at the farm and that he believed with some justification that Riverbend employees were efficient in the farming techniques he used in general. There was no evidence which tended to show that Riverbend employees were not as efficient as the employees who previously had worked on the farm. Harris knew that the workers formerly employed by his predecessor were inexperienced with his pruning and harvesting techni- ques. Harris was unfamiliar with the abilities of the former workers. To investigate their general abilities in other areas of farm work would require much time and effort. Also Harris did not consider the former Rancho Sespe workers because of his adherence to the management principle that it is best not to hire the employees of a predecessor. The only reasonable in- ference which can be drawn on this record is that petitioners’ justification that the changes Harris intended to make at the . farm necessitated his reliance upon the employees of River- bend_is valid and is not inconsistent with his conduct. 6. The Board refused to credit Harris’ uncontradicted . testimony that he promised the Riverbend employees that they would be given whatever work developed in the Ventura area. Harris testified that he told a crew of about 40 to 50 workers that “whatever [employment was] developed in Ven- tura County, they would certainly get the first opportunity to take advantage of that employment.” The Board rejected the 63a promise as a justification because it was not binding upon petitioners. However, even if the promise does not constitute a separate justification, the fact that the promise was made constitutes conduct on the part of petitioner Harris which was consistent with a neutral application of a management decision to employ Riverbend employees whenever a new business was taken over as discussed above. The Board rejected the testimony because it was uncorrobo- rated, but the Board could not reject the testimony solely for the reason of lack of corroboration. The Board refused to credit the testimony because Harris could not remember clearly the names of any workers who were present when the promise was made. The promise was made in the fall, before the administrative hearing held in March, and in view of the substantial length of time which passed after the promise was made, it is not unreasonable that Harris would have forgotten details, such as who was present. There were 40 to 50 workers present and it would have been difficult to keep in mind which 50 of the 500 workers employed by Riverbend were there when the promise was made. Harris’ inability to remember details does not justify discrediting his testimony. (Cf. N.L.R.B. v. Moore Business Forms, Inc., supra, 574 F.2d 835, 843-846.) The Board also rejected the testimony on the ground that the promise was vague. However, this is rebutted by the clarity of Harris’ testimony quoted above. Harris’ testimony was also rejected by the Board on the ground that hiring employees for the farm was remote at the time the promise was made; however, Harris did not say that the workers would be employed at Rancho Sespe, but prom- ised the Riverbend workers that he would use their efforts if work opened in “Ventura County.” Other evidence exists to establish Harris’ intent to employ his workers if future oppor- tunity arose; Harris had hired his employees in the past when taking over businesses, and his adherence to his principle would be consistent with an intent to hire Riverbend 64a employees for future work. Such evidence supports the credi- bility of Harris regarding his testimony that he made the promise, and the inference that the relationship with River- bend employees was substantial. The Board’s rejection of the uncontradicted testimony of Harris concerning the making of the promise for the reasons given in the Board’s decision is not sustainable on this record. 7. The Board rejected Rivcom’s justification that it quickly had to implement changes in the operational procedures at the farm because of the onerous nature of the lease. The Board supported its rejection on the grounds that Harris testified that his primary interest in leasing the farm was to obtain fruit for his packing operation, that under the terms of the lease Rivcom could not lose money and was unlikely to keep any net profits because profits would be paid to the lessor, and that Harris did not in fact make any operational changes ex- peditiously, all of which is inconsistent with the stated justification. However, Harris’ primary motive of obtaining fruit for Riverbend is not inconsistent with a motive to cut costs quickly to maximize profits. If costs in the production of the crops were minimized, profits from the ultimate sale of packaged fruit by Riverbend would be increased. While the lease and the sup- plemental agreement are complicated documents and it is not clear that they were fully understood, the issue is whether Harris genuinely believed that he could make a profit under the lease. Any cut in expenses at the farm would create a profit for Riverbend even if Rivcom did not show a profit; the Board gave inadequate consideration to this fact. (Cf. Electrical Workers v. Labor Board (1961) 366 U.S. 667, 681-682.) It is uncontradicted that the terms of the lease establish that Harris could keep 10 percent of any net profit which was greater than the amount set by the lease as rent. It is also uncontradicted that, under the terms of the lease, Rivcom must begin increasing profits immediately to avoid deficiencies which will be deducted from any net profits in subsequent 65a years. These provisions permit petitioners to make a profit while at the same time put pressure on petitioners to cut costs as soon as possible. For profits to occur, the operating costs of the farm must be drastically reduced. It was Harris’ estimate that he had to cut costs by $625,000 per year. Harris’ belief that a rapid cut in expenses was necessary under the terms of the lease comes within the protection of being a business decision. If Riveom cut its expenses, it could afford to realize some profit which would be paid to the lessor to ensure the renewal of the lease, and yet allow Rivcom to sell fruit at a reduced price to Riverbend; Riverbend would have a guaranteed source of fruit and could realize a greater profit when the fruit was sold. Riverbend, not a party to the lease, would not have to share its profits with the lessor. Harris was not unreasonable in asserting that he could ex- pect to make profits from the operations at the farm if he cut expenses immediately. The reason given by the Board con- stitutes an impermissible judgment on the reasonableness of petitioners’ justification. Because the record indicates that Riverbend could make a profit from the operations at the farm under the lease, petitioner Harris had a substantial justifica- tion for immediately implementing the changes in the opera- tion of the farm. The Board also rejected this business justification because it concluded that petitioner had failed to implement the changes it proposed expeditiously and that Harris’ failure amounted to conduct which contradicted his stated purpose. However, peti- tioners cite to abundant evidence in the record establishing that Rivecom had started to implement the proposed changes and that it proceeded to make what changes it could with diligence; petitioners’ business justification should not have been rejected for the reason that Rivcom promptly did not implement the changes. lease The and agreement make this justification less clear than it might be. However, there is evidence to sustain this business justification and, even assuming the 66a Board could reject the justification upon the reasons it gave, that conclusion would not taint the validity of the other justifications. 8. Although Rivcom asserted below that it was a separate entity from Riverbend, the Board rejected this position and found Riverbend and Rivcom to be a joint enterprise.‘ The Board’s finding tends to support the substantiality of petition- ers’ justifications. Riveom and Riverbend, as joint employers, are in the position of a farmer with a large existing labor force who acquires a new farm and uses his own labor force to run the ‘The Board made the following findings on the interrelationship between Riverbend and Rivcom: “We conclude that Rivcom and Riverbend constitute a single, integrated enterprise at the Rancho Sespe property. Factors to be considered in establishing such status are the interrelation of the operations, common management of busi- ness operations, centralized control of labor relations, and common ownership. No single factor is determinative and we will not mechan- ically apply a given rule in making this determination. [Citations. } “The record shows that Larry Harris is president and manager of both corporations. Riverbend owns all of the Rivcom stock and has an exclusive contract with Rivcom for its fruit, signed by Harris on behalf of both companies. Rivcom performs the pre-harvest activity at the Rancho Sespe property, while Riverbend harvests and packs the fruit. As in Abatti Farms, Inc., supra, there is an integration of two functionally different parts. Larry Harris makes the day-to-day management decisions for both companies. Further, Harris obtained Riveom’s lease to farm Rancho Sespe in order to create new market- ing opportunities for Riverbend, and he geared the timing of cultiva- tion activities at Rivcom, such as lemon pruning, the provide River- bend a marketing advantage. “Harris also has actual control over all the Riverbend and Rivcom Harris has transferred Riverbend managerial employees and Triple M field workers harvesting for Riverbend to the Riveom payroll. He has also transferred Rivcom employees to the Riverbend 67a newly acquired farm. In such a situation, the farmer has a more substantial commitment to his employees and it is more reasonable for the farmer to rely upon those employees. Such conclusions apply in the present case, and the Board’s findings regarding Rivcom and Riverbend as an integrated enterprise render the justifications of petitioners more substantial. 9. The Board contends that petitioners’ abandonment of the “confusion” defense constitutes further evidence of incon- sistencies. Harris testified at trial that the reason he did not respond to two demands from the UFW was that he was confused by receipt of the demands for employment from UFW and, at the same time, complaints from the Board of unfair labor practices. The Board contends that this conflicts with Harris’ other testimony that there were no positions to be filled when the demands were received. However, Harris’ testi- mony on its face is not contradictory. The Board also contends that Harris’ evasiveness in his denial of knowledge of UF W certification at the farm justified rejecting Harris’ testimony. The “evasiveness,” however, as described by the Board in its brief, involves matters of minimal significance about which there is no reason to lie and does not amount to evasiveness in the sense that it indicates untruthful- ness. The Board's innumerable arguments on this issue are non sequiturs. The ALO did not find Harris’ demeanor to indicate evasive- ness. The ALO found: The ALO then names various people involved with the sale of the farm as knowing of the certification to establish that Harris must also have known; these findings do not address demeanor evidence, but are arguments that it was unreasonable for 68a Harris not to know of the certification. As discussed above, Harris’ justifications may not be rejected solely on the ground he was unreasonable. Furthermore, Harris always admitted he knew of union activity and assumed that the farm workers were represented by a union before he took possession of the farm. Harris only insisted he never asked and no one ever told him specifically that the UFW had been certified. This testimony is not in- herently unbelievable. The Board confuses what petitioners’ counsel asserts to the Board and to this court with the justifications for petitioners’ conduct. The Board would have this court hold that any changes in counsel’s legal arguments create inferences that none of petitioners’ justifications has merit. This is not the rule. Conclusion: As to the disagreement among the parties over the applica- bility of the “but for” test to dual motive cases and pretext cases, the court in Lippincott Industries, Inc. v. N.L.R.B., supra, 661 F.2d 112, 114-115, resolved an identical dispute by holding that “the difference between these two types of cases is of little importance.” ! iE ut i fi i 5 4 Cp, See, Coe between the two cases rests upon the differing weight that is attri- determination is made after is presented. 69a “The artificial distinction existing between these two classes of cases was eroded in Ad Art, Inc. v. NLRB, 645 F.2d 669, 678 (9th Cir. 1980), where this court stated that, ‘(when a discharge is conceivably motivated both by legitimate business considerations and protected union activity, the test is whether the business reason or the —— union activity is the moving cause behind the ischarge.’ (Emphasis added.) Many of our more recent decisions have stated the test without reference to the employer's asserted legitimate reasons. (Citations. ] Thus, the test is properly focused on the employer’s impermissi- ble motivation to determine whether anti-union animus was the moving cause, or but for cause, behind the deci- sion to discharge an employee. The test so structured gives full recognition to the well accepted maxim that ‘{a}n employer may an employee for cause, bad cause, or no cause at all, without views i &(a)(3), as long as his motivation is not antiunion di ination and the i does not punish activities protected by the Because the record shows that the Board improperly re- jected some of petitioners’ justifications and there seem to be substantial justifications which are unrebutted, it is necessary that the case be remanded for proper evaluation of the justifications under a “but for” analysis as employed in Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 721. In the Martori case, the Supreme Court evaluated the reasons given by the board for rejecting the employer’s justifications as follows: “. . {t]he Board concluded that (the employer’s justifica- Silva because : H EE i 3 70a reasonably doubt that he was unaware of Silva's miscon- duct or that he failed to consider it at the time of the second discharge in 1978. “The board also deemed it significant that Silva was not terminated immediately after first a in eM Meany Pl Tag apron a we gem or threats. However, he was a on the same day and, al day that he first made the threats Silva was reinstated the next day, tioner continued to litigate the validity of the first and merely sought to mitigate damages. Phe pone oe a is p y invoked only when there is clear ne ci ws that the a has forgiven — employee, intending to =a e slate c ve: (N.L.R.B. v. Colonial Press, Inc. (8th Cir. 1975) 509 F 850, 854-855.) In the present case petitioner + Ye ale I pres mee me sey oo ees amgeeay oy vaas to the comments at meeting on the morning o spcond discharge in 1978 reflect Steven's surprise at find. ing Silva on the premises. 78a enterprise is sustainable. Petitioners cite many portions of the record which would support a finding that Rivcom and River- bend are operated as separate entities; however, other por- tions of the record support a finding of the Board that Rivcom and Riverbend are an integrated enterprise. To the extent that petitioners do not discuss the evidence cited by respondents which tends to support the Board’s determination and show that such evidence is insufficient to sustain the Board’s determination, petitioners have waived the issue. (See Jn re Marriage of Fink, supra, 25 Cal.3d 877, 887-888.) Vv THE BOARD’S FAILURE TO DETERMINE THE APPROPRIATE BARGAINING UNIT FOR RIVCOM/RIVERBEND UNDER LABOR CODE SECTION 1156.2 In applying the successorship doctrine to petitioners, the Board determined that had petitioners not refused improperly to hire the former Rancho Sespe employees said employees would have constituted a majority of petitioners’ work force. Petitioners contend that the above finding of the Board was erroneous because Riverbend employs about 500 agricultural employees. Labor Code section 1156.2 provides as follows: “The bargaining unit shall be all agricultural employees of an employer. If the agricultural employees of the —, er are employed in two or more noncontiguous geograph- ical areas, the board shall determine the appropriate unit or units of agricultural ~ oc in which a secret ballot election shall be conducted.” The above provision requires the Board to determine for certification purposes the number of agricultural employees to be represented by a union. When the successorship doctrine is applied, it is necessary for the Board to determine what the appropriate bargaining unit is in resolving the “majority issue.” Petitioners argue that had the Board used the total number of employees of Rivcom/Riverbend, the Board could not have determined that the former employees at Rancho 79a Sespe constituted a majority of Rivcom/Riverbend’s work force and could not have applied the successorship doctrine to petitioners. We previously remanded the successorship issue to the Board for redetermination. Because this issue is one of the factors relevant to the successorship determination, we appro- priately remand this issue to the Board. VI THE ADMISSION INTO EVIDENCE OF THE PURPORTED IDENTITY AND NUMBER OF THE FORMER EMPLOYEES AT RANCHO SESPE Petitioners contend that the hearing officer improperly admitted into evidence exhibits 46 and 48 consisting of an affidavit prepared pursuant to Evidence Code section 1560 et seq. and a list of the employees employed by NPMS immedi- ately before January 16, 1979. Petitioners first contend that exhibits 46 and 48 were in- admissible because they were not sent by mail to one of the persons authorized under Evidence Code section 1560 to re- ceive them and they were not opened in accordance with sec- tion 1560. However, petitioners failed to object to these de- * The pertinent provisions of Evidence Code section 1560 consist of the following: “(b) . . . when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action . . . and such subpoena requires the production of all or any part of the records of the business, it is sufficient compliance there- with if the custodian or other qualified witness . . . delivers by mail . . . a true, legible, and durable copy of all the records described in such subpoena to the clerk of court or to the judge if there be no clerk or to such other person as described in subdivision (a) of Section 2018 of the Code of Civil Procedure, together with the affidavit described in Section 1561. [{] (c) The copy of the records shall be enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly ae Ht 80a fects below and have therefore waived the issue as to these deficiencies. Petitioners next contend that the affidavit insufficiently es- tablishes the authenticity of the enclosed copies of business records, does not indicate whether the enclosures were pre- pared in the ordinary course of business, does not indicate how the enclosures were prepared, does not state the source of the information, does not indicate who prepared the enclosures, and does not state adequately that the enclosures were pre- pared at or near the time of the act, condition or event. (Evid. Code, § 1561)’ inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, directed as follows: (%]. . . [9] (3) In other cases, to the officer, body, or tribunal conduct- ing the hearing, at a like address. [%] (d) Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrap- per is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition, or hearing. Records which are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received.” ™ Evidence Code section 1561 provides as follows: “(a) The records shall be accompanied by the affidavit of the custodian or other qual- ified witness; stating in substance each of the following: (€] (1) The affiant is the duly authorized custodian of the records or other qual- ified witness and has authority to certify the records. [{] (2) The copy is a true copy of all the records described in the subpoena. [] (3) The records were prepared by the personnel of the business in the ordina- ry course of business at or near the time of the act, condition, or event. [{] (b) If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and such records as are available in the manner provided in Section 1560.” 8la The affidavit states that certain records were requested by a previous subpoena and that “a true copy of those records is enclosed in this envelope.” Construed together, these state- ments in the affidavit adequately establish authenticity of the enclosures. Further, the affidavit establishes that the declar- ant has custody of various business records and that the en- closed are true copies of those records. A reasonable inference can be drawn from these two assertions when construed together that the copies were prepared either by the declarant or under her direction by another employee. Therefore, the affidavit adequately sets forth who prepared the enclosures. The affidavit states that the records requested by the sub- poena consisted of “all lists of. . . employees. . . employed by ([NPMS] at Rancho Sespe, during the payroll period immedi- ately preceding January 16, 1979.” Construed together with the assertion that “a true copy of those records is enclosed in this envelope,” it would appear that those records were pre- pared “at. or near the time of the act, condition or event.” Further, the affidavit declares that “these records were pre- pared in the normal course of business.” The term “normal” is equivalent to including the term “ordinary.” Finally, there is no requirement in Evidence Code section 1561 that the affida- vit contain the additional] statements petitioners claim should be included as to how the enclosures were prepared and the source of the information. Evidence Code section 1561 has been substantially complied with. Petitioners contend that the exhibits constitute inadmissible hearsay and were inadmissible because they were in violation of the best evidence rule. Under Evidence Code section 1562 the affidavit and copy of the records constitute exceptions to the hearsay rule and the best evidence rule.* * Evidence Code section 1562 provides in pertinent part: “The copy of the records is admissible in evidence to the same extent as though the original thereof were offered and the custodian had been present and testified to the matters stated in the affidavit. The affidavit is admissible as evidence of the matters stated therein pursuant to 82a Petitioners contend that section 1560 et seq. of the Evidence Code only makes an affidavit admissible to the extent that it complies with the foundational requirements established by the business records exception codified in Evidence Code sec- tion 1271.° Evidence Code section 1562 provides that the ex- hibits prepared pursuant to that part are admissible “to the same extent as though the original thereof were offered and the custodian had been present and testified to the matters stated in the affidavit.” Section 1562 requires that the affidavit state in detail all of the foundational requirements established under section 1271 if there is an appropriate objection from an adverse party. Petitioners did make appropriate, although somewhat vague, objections before the ALO and the Board. The affidavit satisfies several requirements of Evidence Code section 1271: that the writing be made in the ordinary course of business at or near the time of the act, condition, or event, and that the identity of the writing be established. Petitioners are correct that the affidavit does not describe the records’ “mode of its preparation,” the “sources of informa- tion” nor the “method. . . of preparation.” However, the pur- pose of these requirements is to establish the trustworthiness of the record as being an accurate recording of the facts con- tained therein. The business records exception is premised on the idea that either the person who made the record, or the Section 1561 and the matters so stated are presumed true. . . . The presumption established by this section is a presumption affecting the burden of producing evidence.” * Evidence Code section 1271 provides as follows: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [€] (a) The writing was made in the regular course of business; [{] (b) The writing was made at or near the time of the act, condition or event; [{] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (€) (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” 83a informant who provided the person with the information had knowledge of the facts from personal observation. (Witkin, Cal. Evidence (2d ed. 1966) § 583, p. 556.) The trial court has broad discretion in determining the reliability of the record. (People v. Williams (1973) 36 Cal.App.3d 262, 274-275.) The affidavit established that the company which kept the records relied upon their accuracy because it paid wages to the persons listed in the record believing them to be employees. The company relies upon the records “to comply with various wage payment laws.” Reliance upon the record by the agency keeping the record tends to establish the trustworthiness of the record. (Cf. People v. Williams, supra, 36 Cal. App.3d 262, 275.) The fact that the affiant also declared that “these records were prepared in the normal course of business” implies that they were based upon information acquired from company agents at Rancho Sespe who had personal knowledge of the truth of their facts. We conclude that there was adequate compliance with the pertinent Evidence Code provisions to allow the admission into evidence of exhibits 46 and 48." Vil THE BOARD’S REMEDIAL ORDERS—WHETHER OVERBROAD, PUNITIVE, OR IMPROPER Petitioners challenge various remedies ordered by the Board. First, petitioners point out that the Board made no finding with respect to whether petitioners’ refusal to bargain was motivated by bad faith, and therefore the imposition of the make-whole remedy is in violation of J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1. We agree. The Board imposed the make-whole remedy in this case to compensate the employees “for all losses of pay and other ” In light of our conclusion above, we deny the motions by petition- ers to strike exhibits 46 and 48 and for summary reversals. 84a economic losses sustained by them as the result of [petition- ers’) refusal to bargain... .” The make-whole remedy must be set aside under J. R. Nor- ton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1, 27-40, because the Board failed to determine that Rivcom’s refusal to bargain was in bad faith. (Cf. Electrical Workers v. Labor Board, supra, 366 U.S. 667, 682-683.) Rivcom’s asserted justification for not bargaining with the UFW was that under the Act, the UF'W’s certification was not binding upon Rivcom and that any attempts to bargain would be viola- tive of section 153, [sic] subdivision (f). This issue was one of first impression under the Act at the time petitioners refused to bargain and was finally resolved by the Supreme Court in San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 874 on September 10, 1981. The Board has determined that an employer's refusal to bargain in order to seek review of a first impression issue under analogous circumstances was reasonable and in good faith and, therefore, did not justify imposition of a make-whole remedy. (See, e.g., Charles Malovich (1980) 6 A.L.R.B. No. 29.) Consequently, the make-whole remedy is set aside and remanded to the Board for further proceedings in accordance with J. R. Norton Co. v. Agricultural Labor Relations Bd., supra. In arguments I, II and III above, we concluded that the Board’s findings on the unfair labor practices at issue should be set aside and remanded for further determination. Because the remedies imposed by the Board were based in part upon its findings and analyses regarding the unfair labor practices and the petitioners’ justifications, we conclude that the other reme- dies imposed by the Board should also be remanded so that the Board may redetermine the appropriate remedies after fur- ther findings and decisions are made. Although we need not review the propriety of the other remedies, we make the following observations concerning the imposed remedies for the guidance of the Board upon remand. Petitioners contend that the Board’s imposition of the make- whole remedy is overbroad because it extends to all of the 140 Tla Support for the Martori approach can be found in federal precedents which limit the scope of their review of NLRB cases to the grounds stated by the NLRB for its decision. (E.g., Delco-Remy Div., General Motors Corp. v. N.L.R.B., supra, 596 F.2d 1295, 1303-1304; N.L.R.B. v. Moore Business Forms, Inc., supra, 574 F.2d 835, 843-846; United Insurance Company of America v. N.L.R.B. (7th Cir. 1966) 371 F.2d 316, 323-325; N.L.R.B. v. American Federation of Television and Radio Artists, AFL-CIO (6th Cir. 1961) 285 F.2d 902, 903.) The United States Supreme Court has gone so far as to remand an otherwise affirmable case to the NLRB because “the legal path by which the Board and the Court of Appeal reached their decisions did not take into account” a particular legal issue which might have affected their analyses. (Electric- al Workers v. Labor Board, supra, 366 U.S. 667, 681-682.) We hold that the Board in the present case improperly rejected some of petitioners’ justifications. The reasons given by the Board for not crediting those justifications were either not supported by the record or were inadequate on their face. Said justifications remain unrebutted on the record in the same fashion as were the employer’s justifications in Martori. We are required to set aside the Board’s determination and remand for further proceedings. Upon remand the Board should reevaluate the legitimacy of petitioners’ justifications in light of this opinion and decide whether the conduct of petition- ers would have occurred “but for” the protected activity of the employees. If the Board determines that Rivcom would have acted as it did irrespective of antiunion motivation, then no unfair labor practice occurred. (See N.L.R.B. v. Wright Line, a Div. of Wright Line (ist Cir. 1961) 662 F.2d 899, 906.) If the conduct of Rivcom would not have taken place “but for” an unlawful motivation, the Board may find that the petitioners committed an unfair labor practice. 72a II THE BOARD’S DETERMINATION THAT PETITIONERS’ REFUSAL TO BARGAIN WITH THE UFW CONSTITUTED AN UNFAIR LABOR PRACTICE The basis for the Board’s determination that petitioners committed an unfair labor practice under Labor Code section 1153, subdivision (e), in refusing to recognize and bargain with the union which had been certified as the bargaining agent for the former employees of Rancho Sespe was its finding that petitioners had a duty to bargain with the UFW under a rule formulated in NLRB cases called the “successorship” doctrine. The general rule under NLRB precedent is that an employer who takes over a new business has no obligation to recognize and bargain with a union which was certified to represent its predecessor’s employees unless the “successorship doctrine” is applicable to the facts of the case. Under that doctrine, a new owner of a business who is a “successor” is required to recog- nize and bargain with the bargaining representative of its predecessor’s employees. A successor’s refusal to recognize and bargain with the union has been held to constitute an unfair labor practice. (See NLRB v. Burns Security Services (1972) 406 U.S. 272.) The California Supreme Court in San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 874 vali- dated the Board’s adoption of the successorship test enunci- ated in federal precedents and also the Board’s authority to extend the federal test in appropriate cases to take into ac- count “all relevant considerations relating to a change in own- ership.” (San Clemente Ranch, Ltd., supra, at p. 877.) The Supreme Court allowed the Board broad discretion in determining what factors the Board may rely upon in determining successorship issues.’ 5 This court vacated oral arguments originally set in this action for October 10, 1980, pending determination by the Supreme Court of San Clemente Ranch, Lid. v. Agricultural Labor Relations Bd., 73a Under federal precedents, whether the new owner is a suc- cessor depends upon the degree of continuity between the enterprise maintained by the predecessor and the organization run by the new owner, continuity between the work force of the predecessor and the new owner (the “majority” issue), con- tinuity in the employing industry, continuity in the appropri- ateness of the bargaining unit, and the impact of a hiatus in operations at the business. While the general counsel did not establish that a majority of employees hired by petitioners was formerly employed by the predecessor, petitioners conceded former NPMS employees outnumbered the Rivcom work force by about 140 to 70; there- fore, the Board’s determination on the “majority issue” is dependent upon its determination that petitioners illegally discriminated against the predecessor’s employees. (See N.L.R.B. v. Houston Distribution Serv., Inc. (5th Cir. 1978) 573 F.2d 260, 266-267.) A new employer is not permitted to defeat a-finding of “majority” underlying successorship by discriminating against the employees of the predecessor on grounds they were union members. However, if petitioners did not discriminate improperly against the former employees, the successorship doctrine does not apply in this case. Since we must set aside the Board’s determination on the hiring issue, this court must also vacate the Board’s conclusion that peti- tioners’ refusal to recognize and bargain with the UF W con- stitutes an unfair labor practice and remand this issue for further proceedings. If after remand the Board determines that but for petition- supra 29 Cal.3d 874, involving the successorship doctrine at issue in this case. The Board and petitioners agreed that submission of this ease be deferred until the Supreme Court ruled on San Clemente Ranch, Ltd., supra. 74a court makes the following observations for the guidance of the Board upon remand. There appears to be substantial evidence in a review of the entire record to support the Board’s determination that there was continuity in the employing in- dustry. The Board adopted the test enunciated in Howard Johnson Co. v. Hotel Employees, supra, at page 263, as to whether there is “substantial continuity of identity in the busi- ness enterprise.” Where a new employer “uses substantially the same facilities and work force to produce the same basic products for essentially the same customers in the same geo- geographic area,” it will be regarded as a successor. (Valley Nitrogen Purchasers, Inc. (1973) 207 N.L.R.B. 208.) While we note that petitioner Rivcom did intend to implement sub- stantial changes in the operation procedures regarding harvesting, pruning, irrigation, weed control and avocado packing at Rivcom ranch, these changes do not result in any substantial change in the essential nature of the productions at Riveom ranch, which is a citrus growing and harvesting en- deavor. Although Rivcom will also plant vegetables and flow- ers as crops, the planting of such crops does not change the basic nature of the operations at the Rivcom ranch; it is still essentially a farming activity. (See N.L.R.B. v. Middleboro Fire Apparatus, Inc. (1st Cir. 1978.) 590 F.2d 4.) Although Rivcom will have reduced the amount of machine- ry and equipment used at Rivcom Ranch and changed the techniques of harvesting and pruning, the petitioners will con- tinue to produce, harvest and market citrus fruits, to farm the ranch, to use substantially the same type of work force, to have substantially the same type of jobs available, and to produce the same product, mainly ci fruits. (See Border Steel Roll- ing Mills, Inc. (1973 NjE.R.B. 814.) Under the test enunciated in the Border Steel case the only factor of continuity lacking is that changes will be made in the amount of machinery and equipment used and in the techniques of harvesting and pruning, but under NLRB precedent a lack of a single factor in the continuity of the employing industry will not negate the finding of successorship. (See Radiant Fashions, Inc. (1973) 75a 202 N.L.R.B. 938.) Therefore, the Board’s determination of successorship is supported as to the continuity between the old and new industry. THE BOARD’S DETERMINATION THAT PETITIONERS’ ATTEMPTED EVICTION OF THE FORMER EMPLOYEES OF RANCHO SESPE FROM THE LABOR CAMP WAS MOTIVATED BY ANTIUNION ANIMUS The ALO found that the attempted eviction constituted conduct which was inherently destructive of important em- ployee rights and petitioners do not challenge this determina- tion. The burden was upon petitioners to establish that Riveom had a valid justification for its attempted eviction. (V.L.R.B. v. Great Dane Trailers, Inc., supra, 388 U.S. 26.) Harris testified that his motivation for evicting the workers stemmed from his desire to eliminate the cost of maintaining the hous- ing, to clear the land for additional farming acreage, and to avoid the problems inherent in maintaining such housing. The record supports these justifications offered by Harris. The uncontradicted evidence established that the cost to main- tain a labor camp at Rivcom Ranch is $70,000 a year, and that, by removing the camp, an additional 60 to 70 acres of farm land can be made available for productive planting. The reasons given by the Board for rejecting Harris’ justifications are insufficient and not supported by the evi- dence. ‘The primary reason advanced by the Board and the ALO is the finding that the refusal to hire the former employees at Rancho Sespe was based upon antiunion animus. We have concluded above that this determination must be set aside and remanded to the Board for further proceedings under the Martori case. Moreover, the additional reasons presented by the Board for finding the eviction discriminatory are also defi- cient. Si Ans 76a The Board and the ALO rejected petitioners’ justifications because of the haste with which Harris decided to evict the former employees. We note that even if the ALO were correct in finding Harris’ haste unwarranted, that conclusion does not establish that Harris was not acting pursuant to legitimate objectives and, consequently, the fact that Harris’ decision was made in haste is not a sufficient ground for rejecting his testimony. Even assuming that Harris personally performed all of the acts which the ALO assumed had to occur within 24 . hours of January 16, there is nothing about the 5 or 6 actions and decisions making it impossible for them to be completed in a short period of time. It is uncontradicted that Harris testified that he observed the housing on January 10 and decided then to eliminate it. This indicates that the decision to evict the tenants was not made with the haste described by the ALO and Harris’ testimony may not be rejected on that ground. The Board also rejected Harris’ testimony on the ground that the Board did not believe Harris had conducted sufficient soil tests to determine the feasibility of growing crops on the land currently occupied by the labor camp. This reason amounts to a finding that Harris’ decision lacked adequate foundation and was therefore unreasonable. Not only may the Board not reject justifications simply because it thinks justifications are unreasonable, but the Board misstates Har- ris’ testimony. Harris testified that he examined visually the ground upon which the labor camp stands, evaluated that it would be suitable to grow some kind of vegetable, flower or tree crop, and intended to Conduct further testing after the camps were eliminated to determine what specific crop was to be grown on that ground. There are no facts on the record which would establish that a visual inspection of the soil by a farmer with Harris’ farming experience is an inadequate basis for determining that the soil was capable of producing some kind of crop. Consequently, this reason enunciated by the Board is insufficient to justify the rejection of Harris’ testi- mony. 77a The ALO rejected Harris’ testimony in part because he did not think that Harris “considered whether worker housing might have made economic sense.” Again, the ALO’s reason is not supported by the record. The uncontradicted evidence establishes that eliminating the labor housing would save $70,000 a year in expenses and provide additional acreage for crops. This reason of the ALO is an insufficient basis upon which to reject petitioners’ justifications. As discussed above, none of the additional reasons pre- sented by the ALO and the Board constitutes a sufficient additional ground for rejecting petitioners’ justifications for attempting to evict the tenants. Consequently, the validity of the finding of an unfair labor practice for the attempted evic- tions must be based solely upon the Board’s determination that petitioners’ refusal to hire the workers constituted an unfair labor practice. Because the refusal-to-hire issue must be re- manded to the Board for redetermination, the Board’s determination on the eviction issue must also be set aside and remanded for a reevaluation of the sufficiency of petitioners’ justifications and for a determination of whether the evictions would have occurred absent petitioners’ discriminatory mo- tives. (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 721, 731.) However, even if this court were to sustain the Board’s finding that th. refusal to hire was motivated solely by antiun- ion animus, because we conclude that the economic justifica- tions advanced by petitioner on the eviction issue were improperly rejected by the Board, we would remand this evic- tion issue to the Board under Martori. IV THE BOARD'S DETERMINATION THAT PETITIONER RIVERBEND IS AN AGRICULTURAL EMPLOYER The crucial issue in determining whether Riverbend is an agricultural employer is whether the Board’s finding that Riv- com and Riverbend were engaged in a joint and integrated om 87a practices must be set aside and remanded for redetermination. Unless the Board upon reconsideration again concludes that Riveom committed the unfair labor practices at issue and im- poses remedies which aggrieve Triple M and Riverbend, the innumerable issues raised by these petitioners will be moot. Second, this is a reviewing court. The Board has not passed upon the many issues raised by said petitioners." It is appro- priate to remand these issues for consideration by the Board in deference to its expertise. (Electrical Workers v. Labor Board, supra, 366 U.S. 667, 681-682; see Phelps Dodge Corp. v. Labor Board (1941) 313 U.S. 177, 194; J. R. Norton Co. v. Agricultural Labor Relations Bd., swpra, 26 Cal.3d 1, 29.) Third, several of the issues regarding the extent and pre- judicial effect of the infringement upon said petitioners’ ability to litigate appear to involve mixed questions of fact and law which, to be resolved, may require the taking of evidence. The taking and evaluating of evidence and resolution of such legal issues should be done in the first instance by the Board. (See, e.g., Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal. App.3d 580, 591, fn. 6; N.L.R.B. v. Miller Red- wood Company (1969) 407 F.2d 1366, 1369.) Finally, the Board should also have the first opportunity to pass upon what remedy may be imposed to alleviate any preju- dice suffered by Riverbend and Triple M. To cure such alleged prejudice may require the reopening of the oral proceedings. (Cf. Royal Typewriter Co. v. N.L.R.B. (8th Cir. 1976) 533 F.2d 1030, 1043.) The taking and evaluation of such evidence should be left to the Board. (Pandol & Sons v. Agricultural 2 The Board determined only the procedural issue of whether the amendment of the complaint to make Riverbend a respondent re- sulted in the joinder of Riverbend as a party. (Rivcom Corporation and Riverbend Farms, Inc. (1979) 5 A.L.R.B. No. 55, fn. 2.) This determination does not decide the substantive issues raised by Riv- erbend which are based primarily upon its alleged absence from most of the oral proceedings before the ALO. 88a Labor Relations Bd., supra, 98 Cal.App.3d 580, 591, fn. 6.) Were this court to attempt to resolve these issues now it would constitute an inappropriate invasion of a province normally reserved for the Board. DISPOSITION It is unnecessary to use the limited remand procedure fashioned in Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal.App.3d 580 to return this action to the Board. In Pandol the reviewing court retained review and enforcement jurisdiction over an ALRB case while remanding the proceedings to the Board for reconsideration of the imposi- tion of an access remedy. There is no need in this action to retain jurisdiction over any of the issues. The functions vested in this court by Labor Code section 1160.8” “are within its original jurisdiction over a proceeding ‘for extraordinary relief in the nature of mandamus’ ” within the meaning of article VI, section 10 of the California Con- stitution." (Tex-Cal Land Management, Inc. v. Agricultural ‘8 Labor Code section 1160.8 provides in pertinent part: “Any person aggrieved by the final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the court of appeal. . . . Such petition shall be filed with the court within 30 days from the date of the issuance of the board’s order. Upon the filing of such petition, the court shall cause notice to be served upon.the board and thereupon shall have jurisdiction of the conga The board shall file in the court the record of the proceed- . The court shall have jurisdiction to grant to the board such anuiaiep relief or restraining order it deems just and proper and in like manner to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part, the order of the board. The findings of the board with respect to ques- tions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive.” 4 Article VI, section 10 provides: “The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in 89a Labor Relations Bd. (1979) 24 Cal.3d 335, 350.) Mandate may issue “ ‘to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.’ ” (Tex-Cal Land Management, supra, at pp. 351-352.) Included within this grant of authority is the power to direct inferior tribunals in appropriate cases to vacate orders, to conduct further proceedings to reconsider the issues decided by said orders and thereafter to enter new orders. (Cf., e.g., Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579; Schwei- ger v. Superior Court (1970) 3 Cal.3d 507, 518; Lissner v. Superior Court (1944) 23 Cal.2d 711; Whitney’s At The Beach v. Superior Court (1970) 3 Cal. App.3d 258.) We conclude that all of the circumstances of this case war- rant returning sole jurisdiction to the Board.” Let a decree issue setting aside the order under review and returning the action to the Board for redetermination in light of this opinion.'* The Board is directed to allow the parties to habeas corpus proceedings. Those courts also have original jurisdic- tion in proceedings for extraordinary relief in the nature of man- damus, certiorari, and prohibition. “Superior courts have original jurisdiction in all causes except those given by statute or other trial courts. “The court may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.” ‘5 A condition precedent to any further review by this court after the Board issues its new decision is the timely filing of a new petition for review pursuant to section 1160.8. ‘6 We respectfully disagree with our dissenting colleague’s characterization of the grounds for the reversal. We have applied the substantial evidence test to the reasons given by the Board for rejecting Harris’ many business justifications for his conduct by evaluating whether those reasons are supported by the evidence. We have reluctantly but necessarily concluded that the 9a file additional! briefing on the issues raised herein, to conduct further proceedings and take additional evidence on said issues reasons given by the Board are not reasonably deducible from the record or are patently invalid on their face. Additionally, even if the Board had rejected improperly only one or two business justifica- tions, the fact that apparently valid justifications stand unrebutted on the record would require that this case be remanded for a reevaluation of those justifications and the application of the “but for” analysis. (Martori Brothers, supra.) We acknowledge the California precedents cited by our dissenting colleague holding that a judgment may be affirmed even though based upon erroneous conclusions of law or fact provided that the judgment is sustainable for other reasons. (E.g., Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; Yarrow v. State of California (1960) 53 Cal.2d 427, 437-438.) However, under federal precedents, the reviewing court may limit the scope of its review of NLRB cases to the grounds stated by the NLRB for its decision. (E.g., Delco-Remy Div., General Motors Corp. v. N.L.R.B., supra, 596 F.2d 1295, 1304-1305; N.L.R.B. v. Moore Business Forms, Inc., supra, 574 F.2d 835, 843-846; United Insurance Company of America v. N.L.R.B., supra, 371 F.2d 316, 323-325.) The United States Supreme Court has gone so far as to remand an otherwise affirmable case to the NLRB because “(the legal path by which the Board and the Court of Appeals reached their decisions did not take into account” a particular legal and factual issue which might have affected their analyses. (Electrical Workers v. Labor Board, supra, 386 U.S. 667, 681-682.) The general rationale for the federal rule was expressed in N.L.R.B. v. American Federation of Television and Radio Artists, AFL-CIO, supra, 285 F.2d 902, 903. The board in Radio Artists had based its decision upon the testimony of witnesses Thornburgh and Sheppard which the board conceded should have been excluded from consideration. The board requested the Court of Appeals to apply the federal equivalent of California’s rule as follows: “To correct this error, [the Board requests] the Court to disregard the testimony of witnesses Thornburgh and Sheppard. Counsel advance the argu- ment that without the testimony of these two witnesses there is still sufficient evidence to support the order of the Board.” (Ibid.) The court rejected the Board’s request saying, “We cannot speculate on 9la to the extent the Board decides such steps to be appropriate and to enter a new decision. The stay previously ordered in this action on July 3, 1980, shall continue in effect only until this opinion is final in all what findings the Board would have made without the testimony of Thornburgh and Sheppard. For us to weigh the evidence without the testimony of these two witnesses would put us in a position of making original findings of fact instead of reviewing the findings of the Board.” (/bid.) The California cases provide support for the application of the federal rule in ALRB cases. (See, e.g., Martori Brothers Dis- tributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 721, 730-731; J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1, 27-40; Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal. App.3d 580. We are required to follow such precedents. Labor cases are somewhat unique in their complexity. The task of reviewing a labor decision involves the scrutiny of lengthy evidentia- ry records often times presenting as many factually conflicting points of view as there are witnesses to the proceedings. The principles of labor law at issue in these cases are frequently esoteric, specialized, complicated and ambiguous. The application of this body of law to conflicting factual sets makes it necessary to analyze the multiplicity of subtle, conflicting inferences inherent in almost every issue in labor law. It is for good reason that courts defer to the expertise of the board to resolve labor disputes so as to preserve their reviewing function. (E.g., Pandol & Sons v. Agricultural Labor Relations Bd., supra.) These considerations are nowhere better demonstrated than in the present action. This court agrees with our dissenting colleague that the Board’s opinion “is rife with statements of incredulity in reference to Harris’ testimony.” However, such statements are grounded upon the reasoning expressed by the board for rejecting Harris’ justifications. Because we conclude that the Board’s reasoning is erroneous, the Board’s “incredulity” must also be rejected as a basis for sustaining its decision. (Delco-Remy Div., General Motors Corp. v. N.L.R.B., supra; N.L.R.B. v. Moore Business Forms, Inc., supra; United Insurance Company of America v. N.L.R.B., supra.) Of course, it is oe 92a California courts or the California Supreme Court grants a hearing herein, whichever shall first occur. Thereafter said stay is ordered dissolved. /s/ J. I CONCUR: /s/ P.J. inappropriate for this court to resolve issues of credibility. (N.L.R.B. v. American Federation of Television and Radio Artists, AFL-CIO, supra, 285 F.2d 902, 903.) Unfortunately, under the circumstances of this case we are com- pelled by established precedent to return the action to the Board. (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra; J. R. Norton Co. v. Agricultural Labor Relations Bd., supra.) 93a Rivcom Corporation et al. v. Agricultural Labor Relations Board 5 Civil No. 5121 DISSENTING OPINION BY ANDREEN, J. I respectfully dissent. The majority sets aside the order of the Board and orders a remand because it disagrees with the Board’s analysis of the justifications advanced by Rivcom for its refusal to hire the predecessor’s employees. The Board’s analysis is broader than that. It discussed the UFW certification as the collective bargaining representative of the Rancho Sespe employees; that Larry Harris knew of this fact; that Rancho Sespe employees were experienced year- round workers, that approximately 30 to 40 percent of these employees had been working at Rancho Sespe for more than 10 years, and that about 10 percent had been working there fir over 20 years; that Harris made no inquiries as to their abilities and refused to even consider them as potential employees; he refused to meet with them and rejected outright their offers to work. It found that the lack of consideration given the former employees was based upon Rivcom’s desire to avoid dealing with the union. It inferred that Rivcom’s explanations were superficial, unfounded and contradictory excuses. The majority seeks to substitute its inferences for that of the Board. In doing so, it conchides that other inferences are better supported. But the proper test is not whether the in- ferences drawn by the Board are right, but whether they are reasonable. . Section 1160.8 states: “The findings of the board with re- spect to a question of fact if supported by substantial evidence on the record considered as a whole shal] in like manner be conclusive.” When discussing a like test found in the Adminis- trative Procedure, the Supreme Court stated, quoting from an earlier case: “(I}t must be enough to justify, ifthe trial were toajury, a refusal to direct a verdict when the conclusion sought to 94a drawn from it is one of fact for the Jury. Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300. This is something less than the weight of the evi- dence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an admin- istrative agency’s finding from rig supported by sub- stantial evidence. Labor Board v. Consolidated Copper Corp., 316 U.S. 105, 106; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” (Consolo v. — Maritime Comm'n. (1966) 383 U.S. 607, 620, fn. omitted. ) It is the province of the Board, and not of a reviewing court, “to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.’ [Citations.]” (VLRB v. Fleetwood Trailer Co. (1967) 389 U.S. 375, 378.) The majority maintains that the reasons for rejecting the management principle are not valid. In doing so, the majority not only substitutes its discretion for that of the Board, it examines the reasoning process behind the findings. “The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propenety, than that a ruling or decision, itself correct in law, not be dis- turbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considera- tions which may have moved the trial court to its con- ag is v. Southern Pacific Co. (1897) 116 Cal. “The order is measured by its terms and not by any reasons the court may give for it. (Citations.] It is recog- nized that ‘the reasons given by the court for its action may be bad, and the decision, at the same time, correct for other reasons. It is the action of the court that is presumed to be correct and this presumption obtains even the reasons given may be bad.’ (Citations.] The reasons Ay 95a stated may be valuable in illustrating the trial judge’s theory but they are not binding on an appellate court (citation] and they may never be used to impeach the order or oy yg [Citation.]” (Yarrow v. State of California (1960) 53 Cal.2d 427, 437-438.) Lest it be argued that an order of the Board is entitled to less deference than a finding of a court in a nonjury trial, we note the language in Orvis v. Higgins (1950) 180 F.2d 537, 540: “It follows that evidence sufficient to support a jury verdict or an administrative finding may not suffice to support a trial judge’s finding.” Particularly instructive is footnote 7 where Judge Frank wrote: “A wag might say that a verdict is entitled to high respect because the jurors are inexperienced in finding facts, an administrative finding is given high respect because the administrative officers are specialists (guided by experts) in finding a particular class of facts, but, paradoxically, a trial judge’s finding has far less respect because he is blessed neither with jurors’ inexperience nor administra- tive officers’ expertness.” (bid. Established precedents require this court to ignore the Board’s reasoning when we review its orders.' (DeCou v. Howell (1923) 190 Cal. 741, 751 [trial court’s opinion on the record established that the trial court refused to consider 'The majority reads too much into certain language in Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727. Martori is neither an invitation nor a directive to examine microscopically the reasoning of the board. At page 727 of the opinion, the court reviewed the board’s finding—that the ALO had correctly found that the firing of an employee was pretextual. It noted that the board justified this finding by noting that personal threats made by the employee did not prompt discipline and the employee was reinstated shortly thereafter. The court simply enunciated the “but for” test and stated the rule for employer con- donation of employee misconduct. The court concluded: “(4] As the board may have been unaware of the correct legal standard for measuring the propriety of a discharge based in part on the employ- %a relevant and probative evidence in rendering its judgment. Held: the opinion may not be used to impeach the judgment); Estate of Falcone (1962) 211 Cal. App.2d 40, 49 [“[E]rroneous conclusions of law or unsupported or erroneous findings of fact will be disregarded as being harmless error if judgments, as rendered, can be sustained on the supported and proper find- ings made by the trial court”].) The review of this court should have been limited to determining whether substantial evidence in the record as a whole supports the findings of the Board. (Tex-Cal Land Man- agement, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 343.) The Board’s resolution of conflicting testi- mony and credibility issues must be affirmed if they are sup- ported by the record. (Martori Brothers Distributors v. Agri- cultural Labor Relations Bd., supra, 29 Cal.3d at p. 727.) er’s antiunion bias, and as the board may have misapplied the evi- dence relevant to such a determination, the case should be returned to the board so that it may reconsider its decision. (J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 38-40... .)” (Ibid.) ? The majority attempts to meet these substantial evidence conten- tions in its footnote 16. Two of the cases cited, Delco-Remy Div., General Motors Corp. v. N.L.R.B.(1979) 596 F.2d 1295 and N.L.R.B. v. Moore Business Forms, Inc. (1978) 574 F.2d 835, are Fifth Circuit cases, of which it has been said: “Substitution of judicial judgment for that of the Labor Board may be more common in the Fifth Circuit than in other circuits.” (4 Davis, Administrative Law Treatise (1958) Scope of Review of Evidence, § 29.05, p. 142.) The third case, United Insurance Company of America v. N.L.R.B. (1966) 371 F.2d 316, involved the question of whether insurance agents for an industrial insurance company were employees or inde- pendent contractors. The examiner and the board found that the insurance company paid for the agent’s travel and other expenses when there was no evidence supporting such finding, and made credibility resolutions based upon demeanor in the courtroom, as distinguished from demeanor on the stand. The case is not authority for the wholesale reweighing of the evidence done by the majority in the instant case. The fourth case cited, Electrical Workers v. Labor 97a I believe that the Board’s determination on the refusal to hire issue is sustainable on this record. Under Great Dane Trailers, the enormous destructive effect of Rivcom’s refusal to hire any of the former employees by itself supports an inference that its conduct was motivated by antiunion animus. The existence of such improper motivation is sufficient to render the refusal to hire an unfair labor practice provided the Board’s characterization of petitioner’s asserted justifications of their refusal as pretexts is sustainable. This characterization is, in essence, a credibility determination. While the numerous inconsistencies in Harris’ testimony may appear to be de mini- mis when they are isolated and serutinized individually as the majority opinion has done, the Board was free to adopt the principle that the whole is greater than the sum of its parts. The entire pattern of inconsistencies, evasions, uncertainties, and evidentiary gaps in Harris’ testimony support the Board’s Board (1961) 366 U.S. 667, involved a question of whether picketing of a plant gate used by independent contractors was violative of the secondary boycott provisions of the National Labor Relations Act (§ 8(b)(4)(A)). It simply holds that since the gate may have been used by employees of independent contractors who performed con- ventional maintenance work (as distinguished from such activities as construction work on new buildings, repairs, etc.), the case must be remanded to the board for a further hearing. As I see it, this does not involve a substantial evidence question at all, but a directive to consider the dispute in connection with the law as enunciated by the Supreme Court. What is termed as the “general rationale” for the “federal rule” (N.L.R.B. v. American Federation of Television and Radio Artists, AFL-CIO (1961) 285 F.2d 902), appears to me to be a disavowal of a suggestion that the appellate court reweéigh evidence. In reference to the California cases cited in the majority’s footnote, the Martori case is discussed in the body of this dissent. J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1 is of no assistance to the majority. In it, our Supreme Court set aside a make-whole order which it found had been made pursuant to an invalid administrative rule. 98a conclusion that Harris’ justifications amount to superficial pre- texts advanced solely to legitimize conduct which is inherently destructive to protected rights. Upon this record there is substantial evidence by which the Board could conclude the actual cause of Harris’ refusal was his antiunion animus. Had the question been one of fact for the jury, I cannot imagine a trial court directing a verdict at the close of the evidence. The Board’s determination that the refusal to hire constituted an unfair labor practice is sustainable without having to remand this action to the Board for application of the “but for” standard enunciated in Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra. 85a workers formerly employed at Rancho Sespe when the record indicates that not all of those persons would have been em- ployed by Rivcom in any event. The make-whole remedy is limited by its terms to the losses sustained by the employees as the result of petitioners’ refusal to bargain. The only losses which can be compensated are those suffered by the employees who would have been hired by Rivcom from among the former employees at Rancho Sespe. Which former employees would come within this category would be determined at a compliance hearing. Because the remedy may be construed as self- limiting, we hold that it is not overbroad and is valid. (See Sunnyside Nurseries, Inc. (1977) 3 A.L.R.B. No. 42.) The Board directed petitioners to replace their current work force with as many former employees of Rancho Sespe as petitioners could employ, and to put the rest of the former employees on a preferential hiring list. (Order, par. 2(c).) Petitioners contend that the paragraph is too broad in that it would require the replacement of 12 employees who were hired before any applications were received from the former NPMS employees. However, on remand, if the Board, after comply- ing with the requirements of the Martori case, determines that the failure to hire is an unfair labor practice, it would follow that all of the employees hired by petitioners were selected pursuant to a discriminatory policy and that the appropriate remedy may be to replace all the employees. Petitioners further contend that it was improper for the Board to include in the make-whole remedy compensation for the expenses incurred by the former employees as a result of their not being hired by petitioners. Although petitioners con- tend that paragraph 2(d) is overbroad because it requires that expense payments be a part of the make-whole remedy to be paid to each of the former employees of Rancho Sespe, we conclude, as discussed above, that the order of the Board is self-limiting by its terms to those employees actually harmed by petitioners’ conduct. Construed in this manner, the Board’s order is not overbroad. 86a Petitioners also maintain that the cease and desist order of the Board is overbroad. This question depends upon the result of the proceedings after remand. If the Board finds that the refusal to hire was based on antiunion animus, the record supports the imposition of a blanket cease and desist order because of the seriousness of petitioners’ conduct and the fact that petitioners’ subsequent conduct in refusing to bargain and attempting to evict the former employees is continuing." We reject petitioners’ request to consider Eto v. Agricultur- al Labor Relations Bd. (1981) 122 Cal. App.3d 41 in any man- ner; the case has been decertified and under California Rules of Court, rule 977, an unpublished opinion shall not be cited by a court in any other action or proceeding except when the opin- ion is relevant under the doctrines of the law of the case, res judicata, or collateral estoppel. The underlying transaction of concern in the present case is different from the issue in Eto, and collateral estoppel does not apply. Vill THE CONTENTIONS OF PETITIONERS RIVERBEND AND TRIPLE M Riverbend and Triple M have each submitted extensive supplemental briefing challenging the Board’s decision insofar as it affects them upon the ground that their ability to partici- pate in the oral proceedings was curtailed improperly. This court exercises its discretion to remand these issues to the Board for determination. First, for the reasons given above, the decision of the Board regarding the unfair !abor '' Because the remedies have been set aside, we remand to the Board petitioners’ assertion that the alleged condemned status of the farm housing requires that certain remedies be modified. (Pandol & Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal. App.3d 580, 591.) This court, therefore, denies petitioners’ motion to take judicial notice of the alleged condition of that housing. (Cf. People v. Preslie (1977) 70 Cal. App.3d 486, 493.) 99a 4 ' * STATE OF CALIFORNIA AGRICULTURAL LABOR RELATIONS BOARD Case Nos. 79-CE-1-0X 79-CE-4-0X 5 ALRB No. 55 RIvcom CorRPORATION and RIVERBEND FARMS, INC., Respondents, and UNITED FARM WoRKERS OF AMERICA, AFL-CIO, Charging Party. DECISION AND ORDER On June 12, 1979, Administrative Law Officer (ALO) Joel Gomberg issued the attached Decision in this proceeding. Re- spondents and the General Counsel each filed exceptions,' a ‘In his exceptions, the General Counsel contends that Newport Beach Development Company (Newport) is engaged in a joint ven- ture with Rivcom Corporation. At the hearing, after the General Counsel completed his case-in-chief, the ALO dismissed Newport as a Respondent, finding that it was neither an agricultural employer nor a joint employer with Rivcom. At that point, the General Counsel first raised the issue of a possible joint venture between Newport and Rivcom. The General Counsel and Newport’s counsel, who served also as Rivcom’s counsel, agreed that if the General Counsel raised the joint venture issue at a subsequent compliance proceeding in this matter, Respondents would not raise due-process objections that they were precluded from putting on a case during the unfair-labor- practice hearing. Accordingly, we shall not consider or decide the merits of the joint venture issue at this time, but we note that the issue may be raised in the event of a future compliance proceeding. 100a supporting brief, and a reply brief. The Charging Party also filed a reply brief. The Board has considered the record and the ALO’s Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions of the ALO to the extent they are consistent with this Decision, and to adopt his recom- mended Order as iiodified herein. Agricultural Employer Status of Riverbend Farms, Inc. Respondents except to the ALO’s conclusion that Riverbend Farms, Inc. (Riverbend), is an agricultural employer. We find no merit in this exception. Both Riverbend, as the harvesting and packing operation, and Rivcom Corporation (Rivcom), as the farming operations, contracted with a company called Tri- ple M to perform work on the Rancho Sespe property. Triple M harvests and hauls the fruit for Riverbend to the Riverbend packing house. Benny Martinez, owner of Triple M, supplies the labor, sets the wages for the crews, and provides the harvesting equipment and the vehicles for hauling the fruit to Riverbend’s packing house. Respondents contend that Triple M functions as a custom harvester, rather than merely as a labor contractor for Riverbend, and that it should be con- sidered the employer of the persons on its payroll. We affirm the ALO’s conclusion that Riverbend, rather than Triple M, is the agricultural employer of the harvest employ- ees. All management decisions as to the agricultural opera- tions at the Rancho Sespe property are made by Larry Harris, manager of both Rivcom and Riverbend. Riverbend personnel exercise their own initiative and judgment in overseeing the day-to-day harvest operations. They instruct Martinez and his crews as to where and when to pick the fruit and the number of boxes to be filled. In contrast, Martinez possesses no indepen- dent or managerial control over the agricultural operations. See, e.g., Jack Stowells, Jr., 3 ALRB No. 93 (1977); Napa Valley Vineyards Co., 3 ALRB No. 22 (1977). Although there was no evidence that Riverbend personnel exercise any au- thority to discipline or discharge the Triple M harvest work- 10la ers, Riverbend field department employees are in the fields daily, checking for quality control, whereas Martinez, Triple M’s only supervisor, visits the property only once to three times a week. Rivcom/Riverbend manager Larry Harris exercised a great deal of control over the selection and work of the Triple M crew members employed on the Rancho Sespe property. He assem- bled crews from employees who had previously performed work for Riverbend as Triple M employees, and he used Mar- tinez to aid him in selecting the best workers. Harris trans- ferred workers from the Triple M payroll at Riverbend to the Rivcom payroll. He also transferred Rivcom employees performing cultivation work to the Triple M payrolls to do harvest work for Riverbend. Respondents’ assertion that Har- ris’ actions in making these transfers came only at the direction of and with the authorization of Martinez is not borne out bythe testimony. The record clearly establishes that Riverbend, rather than Triple M, has the substantial, long-term interest in the ongoing agricultural operation. Upon consideration of the above factors and the total activity of both entities, we conclude that River- bend is the agricultural employer of employees working at the Rancho Sespe property on the Triple M payroll. Joe Maggio, Inc., 5 ALRB No. 26 (1979); Corona College Heights Orange and Lemon Association, 5 ALRB No. 15 (1979). Single Employer Status of Riverbend and Rivcom Respondents except to the ALO’s conclusion that Riverbend and Rivcom are joint employers.* We find no merit in this 2 Respondents assert that Riverbend was not a respondent throughout the course of the hearing. At the start of the hearing, the ALO dismissed Riverbend as a respondent and the complaint was amended to allege, as a respondent, “Rivcom Corporation, a wholly owned subsidiary of Riverbend Farms, Inc.” The ALO noted that his action did not go to the issue of what liability, ifany, Riverbend might 102a exception. We conclude that Rivcom and Riverbend constitute a single, integrated enterprise at the Rancho Sespe property. Factors to be considered in establishing such status are the interrelation of the operations, common management of busi- ness operations, centralized control of labor relations, and common ownership. No single factor is determinative and we will not mechanically apply a given rule in making this determination. See, e.g., Abatti Farms, Inc., 3 ALRB No. 83 (1977); Louis Delfino Co., 3 ALRB No. 2 (1977); NLRB v. Triumph Curing Center, 571 F.2d 462 (9th Cir. 1978); Sakrete of Northern California, Inc., 137 NLRB 1220, 50 LRRM 1343 (1962), affirmed, 332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961 (1965). The record shows that Larry Harris is president and mana- ger of both corporations. Riverbend owns all of the Rivcom stock and has an exclusive contract with Rivcom for its fruit, signed by Harris on behalf of both companies. Rivcom per- forms the pre-harvest activity at the Rancho Sespe property, while Riverbend harvests and packs the fruit. As in Abatti Farms, Inc., supra, there is an integration of two functionally different parts. Larry Harris makes the day-to-day manage- ment decisions for both companies. Further, Harrris obtained Rivcom’s lease to farm Rancho Sespe in order to create new marketing opportunities for Riverbend, and he geared the timing of cultivation activities at Rivcom, such as lemon prun- ing, to provide Riverbend a marketing advantage. Harris also has actual control over all the Riverbend and Riveom employees. Harris has transferred Riverbend man- have incurred for unfair labor practices committed by Rivcom. Dur- ing the General Counsel’s case-in-chief, the ALO noted that the testimony had raised the possibility of Riverbend’s having separate agricultural-employer status. At the end of Riverbend’s case, the complaint was amended to allege that Rivcom and Riverbend are joint employers and that, as joint employers, they violated certain sections of the ALRA. We find that Riverbend was properly joined as a party herein. 103a agerial employees and Triple M field workers harvesting for Riverbend to the Rivcom payroll. He has also transferred Rivcom employees to the Riverbend payroll. Harris repeated- ly asserted his concern for, and his efforts towards, developing a unified, stable, year-round work force, which would neces- sarily entail the interchange of Rivcom pre-harvest employees and Riverbend harvest employees. Respondents assert that Harris has no control over the wages, hours and working conditions of the Triple M crews employed by Riverbend, and that Harris therefore does not possess centralized control of labor relations. Respondent fur- ther claims that the absence of centralized control precludes a finding that Riverbend and Rivcom are a single employer. We find no merit in Respondents’ contentions. First, it has already been pointed out that Riverbend does exert daily control over the working conditions of the Triple M crews and over the selection of the employees, and that Harris transfers employ- ees between the Riverbend and Rivcom payrolls. While it is true that Martinez sets the wage scale for the Triple M employ- ees, Harris does exercise some control over tlie terms and conditions of employment for these workers. Under NLRA precedent, a finding of single-employer status does not require a showing of control over labor relations at the local level, but may instead be based upon evidence of control and a central- ized labor relations policy at the top-management level. See Sakrete of Northern California v. NLRB, 332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961 (1965). Second, although the NLRB considered common control of labor relations to be an important factor in determining whether certain entities operate as a single, integrated enter- prise, Gerace Construction, Inc., 193 NLRB 645, 78 LRRM 1367 (1971), the absence of a common labor-relations policy does not preclude finding single employer status. Abatti Farms, Inc., supra; Canton, Carp’s, Inc., 125 NLRB 483, 483-484, 45 LRRM 1147 (1959). This is especially true in cases arising under the ALRA. Labor contractors who supply agri- cultural labor may exert a substantial amount of direct control 104a over the wages and working conditions of the employees,’ and yet are excluded from the statutory definition of an agricultur- al employer. Labor Code Section 1140.4(c). The result is that in agriculture the statutory employer may not exercise direct control over wages and working conditions of the employees. In view of the unique role of the farm labor contractor in agricultural employment, less weight is accorded to the factor of direct control over labor relations than in the industrial setting. Respondents also except to the ALO’s finding that Rivcom is operated exclusively for Riverbend’s benefit, asserting that Rivcom functions as would any other outside grower in relation to Riverbend. While there is evidence that Harris plans to institute limited operations at Rivcom which would not direct- ly benefit Riverbend, such as planting geraniums and veget- ables, the evidence viewed as a whole establishes that the two companies are so integrated as to constitute a single enter- prise. Harris’ control over both corporations, the interchange of employees between Riverbend and Rivcom payrolls, River- bend’s ownership of all the Rivcom common stock, the use of a centralized computer system for payrolls, and Harris’ asser- tion that he intends to use Rivcom to further Riverbend’s foreign-export marketing activities, all indicate that Rivcom is not simply an outside grower. Section 1153(c) and (a) Violations—Respondents’ Refusal to Hire Respondents except to the ALO’s conclusion that they violated Labor Code Section 1153(c) and (a) by their refusal to hire any former employees of National Property Management Systems (NPMS) at Rancho Sespe. Respondents claim they acted lawfully in refusing to hire the former NPMS employees ’The definiton of a farm labor contractor, as set forth in Labor Code Section 1682(b), includes “any person who .. . supervises, times, checks, counts, weighs, or otherwise directs or measures {agricultural employees’) work.” 105a and in hiring employees who had formerly worked for River- bend. For the reasons discussed below, we find that Respon- dents violated the Act by discriminatorily refusing to consider or hire any former NPMS employees. We start with the principle that the Act must be enforced in such a way as to acknowledge and give appropriate weight both to the right of employers to structure their businesses in the manner which they desire and to the policies of protecting employees and stabilizing labor relations. The objectives of national labor policy, reflected in es- tablished principles of federal law, require that the right- ful prerogative of owners independently to rearrange their businesses and even eliminate themselves as em- ployers be balanced by some protection to the employees from a sudden change in the employment relationship. John Wiley & Sons v. Livingston, 376 U.S. 543, 549 (1964) (emphasis added). While a new employer is generally entitled to restructure a business, and in fact is encouraged to do so by our competitive economic system, we are mandated to insure that even wherea business changes hands, the rights of the former employees and the goals of the labor laws are not obliterated. As Judge Leventhal said in his concurrence in /nternational Association of Machinists, Dist. Lodge 94 v. NLRB: The purchaser of a business does not take title unen- cumbered by the labor relations obligations of his prede- cessor. He is well advised to analyze labor title as much a real title. Rooted in our competitive enterprise system is a strong policy in favor of free transfer of assets and flexibil- i new management attuned to economic efficiency. is is not, however, an absolute value. It must be bal- anced against the policies of protection for labor and sta- bility of labor relations that are embodied in the federal labor statutes. Under the policies of these laws the new owner does not start with a completely blank slate. Inter- national Association of Machinists, Dist. e€ 94 V. pia ‘aa F.2d 1135, 1139 (D.C. Cir. 1969) (footnote omitted). 106a The right of a new employer to restructure its business includes the right to select its own employees. It is not bound by the law to hire the employees of its predecessor. In Howard Johnson Co. v. Hotel Employees, the United States Supreme Court quoted from its opinion in NLRB v. Burns Security Services, 406 U.S. 272 (1972): We found [in Burns] that nothing in the federal labor laws “requires that an employer . . . who purchases the assets of a business be obligated to hire all of the employ- ees of the predecessor though it is possible that such an ea might be assumed by the employer.” 406 U.S., at n.5. . . . Burns emphasized that “[a] potential em- ployer may be willing to take over a moribund business only if he can make changes in corporate structure, composition of the labor force, . . . and nature of supervi- sion.” 406 U.S. at 287-288. Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 261 (1974). The new employer may not, however, refuse to hire the em- ployees of its predecessor for discriminatory reasons. The Court in Howard Johnson went on to say: 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 [NLRA, the equivalent of Section 1153(c) of the 4 LRA]. Thus, anew owner could not refuse to hire the emp! yees of his predecessor solely because they were unica members or to avoid having to recognize the union. See NLRB v. Burns Security Services, U.S. 272, at 280-281, n.5; K.B. & J. Young’s Super Markets v. NLRB, 377 F.2d 463 (9th Cir.), cert. denied, 389 U.S. 841 (1967); Tri State Maintenance Corp. v. NLRB, 132 U.S. App. D.C. 368, 408 F.2d 171 (1968). Howard Johnson Co. v. Hotel Employees, supra, at 262, n.8. It is now our task to apply these principies to the facts of the instant case and, specifically, to determine whether Respon- dents’ failure to hire any of the former NPMS employees constituted unlawful discriminatory conduct or was simply part of a reorganization of the newly-acquired business enter- prise. We find, however, that the task is not so simple as it first appears, and that rather than finding one clear statement of 107a Respondents’ purpose, we must sift through all the facts, and draw inferences from the available evidence. As Judge Frank wrote: But courts and other triers of facts, in a multitude of cases, must rely upon such evidence, i.e., inferences from testi- mony as to attitudes, acts and deeds; where such matters as purpose, plans, designs, motives, intent, or similar matters, are involved, the use of such inferences is often indispensable. Persons engaged in unlawful conduct sel- dom write letters or make public pronouncements ex- plicitly stating their attitudes or objectives; such facts must usually be discovered a inference; the evidence — = come in —— labelled, “Use me,” like the bearing the w “Eat me,” which Alice found help bful in Wonderland. F. W. Woolworth Co. v. NLRB, 121 PP. 2d 658, 660 (2d Cir. 1941) (footnote omitted). The United Farm Workers of America, AFL-CIO (UFW), was certified as the collective bargaining representative of the NPMS employees at Rancho Sespe on May 17, 1978. The UFW and NPMS had participated in negotiations but had not yet reached a collective bargaining agreement by January 16, 1979, the date when the property was transferred to Newport Beach Development Company (Newport) and was leased by Rivecom. Larry Harris testified that he had become aware through trade sources of the organizing activities and the election results at Rancho Sespe in late spring or early summer of 1978. The NPMS employees were experienced year-round em- ployees. Approximately thirty to forty percent of these em- ployees had been working at Rancho Sespe for more than ten years, and about ten percent had been working at the ranch for over twenty years. There was no question raised regarding their qualifications as citrus employees. In fact, Harris made no inquiries at all as to the abilities of the workers, and steadfastly refused even to consider these employees for hire. Despite repeated requests for employment by the former em- 108a ployees, Harris refused to meet with them, and rejected out- right their offers to work.‘ Immediately upon taking over the operations at Rancho Sespe, Harris distributed eviction notices to the employee- residents, rejected the UF'W’s request to bargain and its re- quest that Harris hire the workers, and brought in Triple M employees who had previously worked for Riverbend. Respondents set forth several explanations for their refusal to consider or hire any of the former NPMS employees. Harris claims that he needed a skilled, competent crew familiar with his mode of operations, and that he was going to change the methods of operating Rancho Sespe so dramatically that the former NPMS employees would not be able to adapt. Harris also stressed his wish to award his employees’ previous service with year-round employment, and to fulfill a promise he had made to his employees to hire them if he obtained the ranch. Respondents claimed that here, as in previous takeover situa- tions, they followed the management principle which opposes hiring employees of the predecessor. Respondents further claim that the former NPMS employees insisted that all or none be hired, and that Harris could not meet this condition since he intended to make the ranch less labor intensive. Another reason advanced for hiring former Riverbend/Triple M employees rather than the former NPMS employees was that Harris needed to start the agricultural operations immedi- ately in o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1389%3A1. Public record. Not legal advice.