LABORERS INTERNATIONAL UNION OF NORTH AMERICA NO 89 v. BOARD OF TRUSTEES OF ESCONDIDO CEMETERY DISTRICT (1977)

Full Text of Opinion

Plaintiffs appeal a judgment by the trial court determining plaintiffs Elbert L. Roy Brown (Roy) and George R. Brown (George) had been discharged from their respective positions with the Escondido Cemetery District, dba Oak Hill Memorial Park (Board) for “deficient, inadequate and unsatisfactory” performance of work in the case of Roy and for “carelessness and recklessness” of work habits on the part of George.

The Board had employed plaintiffs Roy and George for a number of years as superintendent and maintenance man respectively, until terminating them shortly after learning they and other cemetery employees were about to join plaintiff Laborers' International Union of North America No. 89 (Union). The Browns contend they were discharged solely because of their union activities in violation of sections 3502 and 3506 of the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.). The Board claimed the Browns were discharged for other reasons related to their job qualifications and performances.

Plaintiffs' first cause of action sought a writ of mandate directing the Board to recognize, meet and confer with the Union. The second and third causes of action sought a writ of mandate commanding the Board to reinstate the Browns to their former positions without loss of wages, and the fourth cause of action sought declaratory relief as to the foregoing matters.

The matters were originally heard on the law and motion calendar, where the court discharged the alternative writ requiring reinstatement of the Browns but granted a peremptory writ directing the Board to recognize and confer with the Union. The Board appealed from that portion of the order granting the peremptory writ. This court affirmed the granting of the writ to compel bargaining and returned the matter for trial.

Afterwards, at the close of plaintiffs' case, the trial court granted the Board's motion for a judgment pursuant to Code of Civil Procedure section 631.8. Upon plaintiffs' appeal this court reversed, holding the only evidence subject to the weighing process on a motion pursuant to Code of Civil Procedure section 631.8 is that which is part of plaintiffs' case (Miller v. Dussault, 26 Cal.App.3d 311, 317).

The matter was again returned to the trial court where it was set for trial before the same judge who had granted the Code of Civil Procedure section 631.8 motion. Plaintiffs filed a Code of Civil Procedure section 170.6 motion, seeking to disqualify him. This motion was denied as not being timely. Trial was then resumed at the point at which the Code of Civil Procedure section 631.8 motion had been erroneously granted. As their case in chief, the Board introduced the testimony of witnesses called and depositions admitted under Evidence Code section 776 as part of the plaintiffs' case, and rested. Following rebuttal testimony, the trial court made certain findings of fact, refused others, and again gave judgment for defendant. This appeal followed.

On this, the third appeal, plaintiffs' threshold contention is the trial court erred in resuming trial at the point it had erroneously granted the Code of Civil Procedure section 631.8 motion. This court had, in its reversal of the judgment granting the Code of Civil Procedure section 631.8 motion, stated, without directions. “The judgment is reversed.” This outright reversal required a new trial, not a continuation of the interrupted trial, plaintiffs assert. Interlocked, pendent upon answer, is the further contention of trial court error in denying the motion to disqualify the trial judge.

The motion for disqualification under Code of Civil Procedure section 170.6 “must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.” (Jacobs v. Superior Court, 53 Cal.2d 187, 190.) It comes too late when filed after the judge against whom it is directed has heard and decided preliminary matters involving contested issues of law or fact (McClenny v. Superior Court, 60 Cal.2d 677, 680-681).

Concerning the effect of language of unqualified reversal, the general rule is set forth in Hall v. Superior Court, 45 Cal.2d 377, 381, where the Supreme Court stated: “‘[A]n unqualified reversal remands the cause for a new trial [citation], and places the parties in the trial court in the same position as if the cause had never been tried, with the exception that the opinion of the court on appeal must be followed so far as applicable.’ [Citations.]”

Stromer v. Browning, 268 Cal.App.2d 513, 518-519, refines the general rule: The use of the language by the appellate court of “‘Judgment reversed’ at the end of an opinion is . . . strong indication of such intent . . .” that a retrial be had. However, Stromer, supra, continues: “But when the opinion as a whole establishes a contrary intention, the rule is inoperative. To hold otherwise would be to make a fetish of form.”

Columbia Engineering Co. v. Joiner, 231 Cal.App.2d 837, 858-859, arose out of a judgment based upon the granting of a Code of Civil Procedure section 631.8 motion. The court said:

“The court's decision in this case was made upon a motion for judgment under section 631.8, Code of Civil Procedure, at the close of plaintiff's case. That section expressly provides that the movant may make the motion ‘without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted.’ Obviously, the same rule would apply if, on appeal, it is held that the motion was improperly granted.

“In view of our determination the case will have to be remanded to the trial court to permit defendants to offer evidence in support of their defense and in rebuttal of the following issues . . . .”

In Columbia Engineering, the judgment was reversed and “the cause remanded . . . for further hearing . . . in accordance with the views herein expressed.” The directive language in Columbia Engineering makes it not totally in point; however, the trial proceedings were identical to those in the case at bench. Further, the corrective action taken by Columbia Engineering fits precisely as the remedy reason and logic would prescribe in the factual context in which this court used words of unqualified reversal. To require a new trial would “make a fetish of form.” We conclude a continuation of the interrupted trial, with opportunity for the defense to present its case, was the intended result. The trial court correctly determined the challenge not timely and denied the motion to disqualify.

Plaintiffs make two further contentions of error. First, the trial court failed to make findings of fact on relevant material issues as requested; and, second, the evidence is insufficient to support findings 5 and 7, determining the Browns were not discharged for union activities, and findings 6 and 8, declaring the Browns were fired for legitimate business reasons.

Where findings are required, they must fairly disclose with specificity the trial court's determination of all issues of fact material to its judgment (Code Civ. Proc., § 632; Cal. Rules of Court, rule 232(e)).

Failure to make requested material findings is “ordinarily” reversible error. Guardianship of Brown, 16 Cal.3d 326, 333, marks out the parameters of this rule, stating: “It is settled that, unless waived, express findings are required on all material issues raised by the pleadings and the evidence, and failure to find on a material issue will ordinarily constitute reversible error. [Citations.] Where the complaining party has introduced substantial evidence to support a finding in his favor on such an issue, reversal is compelled. [Citations.] The old doctrine of implied findings may not be invoked when the complaining party has made known to the trial court his claim as to the inadequacy of the findings. [Citation.] Code of Civil Procedure section 634 now provides in pertinent part that ‘[w]hen written findings and conclusions are required, and the court has not made findings as to all facts necessary to support the judgment . . . and the record shows that such omission . . . was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal . . . that the trial court found in favor of the prevailing party as to such facts or on such issue.”’

Plaintiff requested 17 additional specific findings of fact and four additional specific “findings of fact and conclusions of law.”¹ These were refused without hearing.

Findings should state ultimate fact, not evidentiary matter or conclusions of law. A request for findings calling for evidentiary or nonmaterial material is properly denied (Kanner v. Globe Bottling Co., 273 Cal.App.2d 559, 567-568). The findings requested by plaintiff are material to the most critical issue in this case, to wit, was the moving cause of the discharges legitimate business reasons or a protected union activity. The requested findings are in part in the generally accepted ultimate fact form. Others use an umbrella-type determination of specific factual events. Still others seek pure evidentiary detail. All the requested findings, whether ultimate fact, hybrid or evidentiary, are material to the heart issue of this case, central to plaintiffs' theory of recovery. None would needlessly embellish the structure of the findings with rococo detail (Lewetzow v. Sapiro, 188 Cal.App.2d 841, 845). Each of the findings requested was supported by substantial evidence. Some are uncontested (plaintiffs' requested findings 12, 13 and 14). Most are admissions straight from the mouths of the trustees or from the trustees' records (plaintiffs' requested findings 5, 6, 7, 8, 10, 11, 15 and 17). In the present state of the findings, we are left without guidance as to the path the court followed from evidence or lack thereof to judgment. DeArmond v. Southern Pacific Co., 253 Cal.App.2d 648, 658, strikes a responsive chord in speaking to the remedial function of Code of Civil Procedure sections 632 and 634: “The broad purpose of the amendment seems to have been to alleviate the frustration of losing litigants and their attorneys confronted with noncommunicative trial judges who did not explain their rulings in any memorandum opinion and who frequently (with the aid of successful counsel) couched their findings of fact in terms so ‘ultimate’ that it was extremely difficult, if not impossible, to determine either the factual basis or legal theory of the decision. Cases are legion in which the frustration of the loser has been shared by reviewing courts. If findings are to serve any purpose they should, as section 632 now requires ‘fairly disclose the court's determination of all issues of fact.”’

We now turn to an analysis of applicable law to survey the effect of the court's failure to make findings.

Plaintiffs charge the Board with violation of sections 3502 and 3506 of the Meyers-Milias-Brown Act (Gov. Code § 3500 et seq.). (8) These provisions of the Government Code, while not identical, are similar in language to the provisions of section 7 of the Federal Labor Management Relations Act (29 U.S.C. § 157) and section 8(a)(1) and (3) of the same act (29 U.S.C. § 158). Therefore, the construction to be placed by this court upon the language “. . . employees shall have the right to form, join, and participate in activities of employee organizations of their own choosing” (Gov. Code, § 3502) and the prohibition against public agencies' interfering with, intimidating, restraining or coercing public employees because of their exercise of their right to form or join a union (Gov. Code § 3506), is guided by decisions, interpretations of the comparable sections of the Federal Labor Management Relations Act by the federal courts (International Assn. of Fire Fighters v. County of Merced, 204 Cal.App.2d 387, 392, 50 LRRM 2726; Escamilla v. Marshburn Brothers, 48 Cal.App.3d 472, 482, 121 Cal.Rptr. 891; Ball v. City Council, 252 Cal.App.2d 136, 143, 66 LRRM 2215; Placentia Fire fighters v. City of Placentia, 57 Cal.App.3d 9, 22, 92 LRRM 3373).

In Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 37 LRRM 2587, it was held that an employer abrogates the rights of the employee to self-organization when it vigorously attempts to influence or coerce employees either not to join a union or to abandon membership after joining. “No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline.” (Labor Board v. Babcock & Wilcox Co., 351 U.S. 105, 113, 38 LRRM 2001.) No policy of discrimination will be tolerated against persons who have exercised their right to join a union (Labor Board v. Jones & Laughlin, 301 U.S. 1, 1 LRRM 703). Radio Officers v. Labor Board, 347 U.S. 17, 45, 33 LRRM 2417, 2428, in determining whether the rights granted have been violated, points out it is “unnecessary” to make specific proof of anti-union intent where the employer's conduct inherently discourages union membership. With respect to the intent requirement of section 8(3), the Supreme Court said: “Both the Board and the courts have recognized that proof of certain types of discrimination satisfies the intent requirement. This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an application of the common law rule that a man is held to intend the foreseeable consequences of his conduct. [Citations.] Thus an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement. Concluding that encouragement or discouragement will result, it is presumed that he intended such consequence. In such circumstances intent to encourage is sufficiently established.” [Emphasis added.]

In NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 65 LRRM 2465, 2469, the Supreme Court reviewed a series of its previous decisions and came up with “several principles of controlling importance”: “First, if it can reasonably be concluded that the employer's discriminatory conduct was ‘inherently destructive’ of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is ‘comparatively slight,’ an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.” [Emphasis added.]

Thus an employer's protestation that he did not intend to discourage union organization is unavailing where a natural consequence of his action is to destroy the union. If discouragement does result, it is presumed the employer intended such a consequence. International Assn. of Fire Fighters v. County of Merced, supra, 204 Cal.App.2d 387, 391, 50 LRRM 2726, 2728, restates most succinctly the foregoing principle from the federal courts and pithily summarizes both that law and the facts of this case: “‘Actions speak louder than words.’ . . . [I]t is impossible for any fair-minded person who reads the record in this case to escape the conviction that Mr. Vaughn was at all times motivated by his dislike for outside labor organizations and that he did everything in his power to obstruct and discourage the institution of a union local by the firemen.”

We are here presented with two contrapoised ultimate facts claimed to be the cause for the firings, to wit, a legitimate business reason and/or a union activity protected by Government Code sections 3502 and 3506. In such factual posture, the federal cases teach us that a business reason cannot be a pretext for a discriminatory firing.

In N.L.R.B. v. Ayer Lar Sanitarium (9th Cir.) 436 F.2d 45, 50 76 LRRM 2224, 2227, it is stated: “[T]he cases are legion that the existence of a justifiable ground for discharge will not prevent such discharge from being an unfair labor practice if partially motivated by the employee's protected activity; a business reason cannot be used as a pretext for a discriminatory firing. [Citations.] The test is whether the business reason or the protected union activity is the moving cause behind the discharge. [Citations.] In other words, would this employee have been discharged but for his union activity?” (See also N.L.R.B. v. West Coast Casket Company, Inc., 469 F.2d 871, 874, 81 LRRM 2857.)

As was said in Magna Visual v. N.L.R.B., 516 F.2d 876, 876-877, 89 LRRM 2367: “[T]he presence of mixed motives would not convert protected activities into unprotected ones . . . .”

International Assn. of Fire Fighters v. County of Merced, supra, 204 Cal.App.2d 387, 395, 50 LRRM 2726, 2731, follows the “moving cause” concept in holding: “[T]here should be a close scrutiny of the reasons advanced for Captain Johnson's discharge, and if the termination of his employment was effected because of legitimate activities as defined herein on behalf of the formation of the union, he should be reinstated.”

The significance of the findings sought but denied emerges loud and clear from the foregoing summary of relevant principles, when we examine uncontradicted facts to determine the moving cause, to ascertain whether the Browns, or either of them, would have been discharged “but for his union activity.” These facts are: (1) The determination to fire the Browns was made within hours of the Board's learning of the union organization and the high-profile participation of the Browns therein. (2) The Browns were actually fired or resignation requested, within three days after the Board first learned of the union activities at the cemetery and the Browns' active participation therein (3) By August 9, 1972 (within approximately three months of discovery of the union activity) all employees of the cemetery who had previously granted and signed union authorization, made written retractions under circumstances which would indicate pressure from the Board. (4) Trustee Bowers' anti-union animus immediately before the firings is vividly described by at least nine witnesses. These specific statements and acts ascribed to Bowers stand unrefuted.² (5) Trustee Owens expressly admitted he did not want the Union at the cemetery.³ (6) Owens admitted commending Roy for the job he was doing at the cemetery shortly before the May 16, 1972 eruption. Further, Owens admitted he threatened two new members of the Board with lawsuits if they reinstated either of the two Browns. (7) Trustee Beven does not deny that in early May 1972 he told Roy the cemetery “never looked so good.” Beven further admits talking to a man at the cemetery who had visited cemeteries all over the country and “never seen one look so nice.” (8) Roy expressly requested in writing an administrative hearing on the causes of his discharge. Trustee Bowers admits receiving this request, but he did not disclose its contents, or the fact that he had received it, to his fellow trustees. No hearing was held.

There was competent, admissible, uncontested evidence before the court on each of the foregoing matters. When totaled, it compelled the one inescapable conclusion: the effect of the words and acts of the Board was inherently destructive of the rights of the Browns expressly guaranteed to them by Government Code sections 3502 and 3506. Where the actions of the Board had this effect, “no proof of an anti-union motivation is needed.” Upon such uncontradicted evidence the trial court was authorized to find an improper discharge “even if the employer introduce[d] evidence that the conduct was motivated by business considerations.” (NLRB v. Great Dane Trailers, supra, 388 U.S. 26,34, 65 LRRM 2465, 2469.)

The primary thrust of plaintiffs' case before the trial court was there was no legitimate business reason for the firings; that the “moving cause” was the Board's desire to thwart union organization. These requested findings support the conclusion the moving cause for the discharge of the Browns was the exercise of their rights to organize and express grievances guaranteed by the Meyers-Milias-Brown Act. Failure to make the requested findings constituted reversible error (Guardianship of Brown, supra, 16 Cal.3d 326, 333; Longfellow v. Presidente Miguel Aleman, 36 Cal.App.3d 508, 515; Auer v. Frank, 227 Cal.App.2d 396, 406.

We now proceed to examine plaintiffs' second contention that the evidence is insufficient to support the findings (5 and 7) declaring Elbert L. Brown's and George R. Brown's “participation in union activity” was not the basis for his or their discharge, and findings 6 and 8 that Roy was discharged by reason of his “generally deficient, inadequate and unsatisfactory performance as superintendent” and George was discharged by reason of “carelessness and recklessness in his work habits,” particularly with respect to heavy equipment, endangering both those he worked with and the equipment he operated, and for his criticism of those clergymen who spoke too long at funeral services.

Upon such a challenge, the power of the appellate court begins and ends with its determination of whether there is any substantial evidence, contradicted or not, which supports the questioned findings (Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875, 881; Estate of D'India, 63 Cal.App.3d 942, 950). This easy solution to disputed factual issues eludes us here.

It should be first noted findings 5 and 7 are negative findings. The trial court made the same findings in support of the judgment here on appeal as previously adopted when it erroneously granted the Code of Civil Procedure section 631.8 motion. While such findings are logical at the trial court level, in support of a Code of Civil Procedure section 631.8 motion, yet such findings pose difficulty when tested on appeal from judgment after trial.

As was said in Greening v. General Air-Conditioning Corp., 233 Cal.App.2d 545, 550-551 [43 Cal.Rptr.662]: “To find substantial evidence in support of a finding of no evidence draws the reviewing court into a kind of juridical shell game. There is a more palatable approach. Frequently the real crux of the argument on appeal is the plaintiff appellant's claim that the trial judge refused to draw all available inferences from the plaintiff's evidence. Such a claim is quite in order on appellate review of a nonsuit motion, because there the trial judge is obliged to draw inferences favorable to plaintiff. Where, as here, the trial judge is directed by statute to weigh the evidence and make findings, he has no such obligation. Rather, he may draw such inferences as seem reasonable to him. The following then becomes the appropriate rule on appeal: “‘When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court . . . .”’ (Callahan v. Gray, 44 Cal.2d 107,111 . . . .)” (See also Trigg v. Smith, 246 Cal.app.2d 510, 515, and Heap v. General Motors Corp., 66 Cal.App.3d 824.)

In the instant case the trial court's findings 5 and 7 are framed in terms of presence of negative proof. Pursuing the “more palatable approach,” we find no facts from which the trial court could reasonably draw inferences to support findings that the Browns' participation in union activities as not a basis for his or their discharge. The uncontradicted evidence of anti-union acts and words does not authorize inferences to support these findings (Code Civ. Proc., § 634). They warrant contrary findings. Furthermore, there is total lack of evidence of a present, immediate, viable business reason fro the findings from which one might infer the lack of an anti-union motive. Findings 5 and 7 are not supported by substantial evidence.

In applying the substantial evidence standard to challenged findings 6 and 8, we note two facts concerning the discharge of George: (1) he was discharged for airing grievances to his employer — the Board — concerning ministers who preached lengthy graveside sermons.⁴ This assertion, voiced by George on behalf of the men, is interwoven with the grievance of lack of pay for overtime work; certainly this is a proper subject on which to grieve; secondly, the allegation of careless work habits by George is without factual root. Within a year prior to his discharge George had been praised for his work as the “best back hoe” operator. In late 1971 he was considered for a raise, barred only by the wage freeze.

The evidence concerning Roy's discharge for unsatisfactory performance as superintendent consists of opinions, conclusions by the Board members voiced after the fact of discharge, and based upon facts alleged to have occurred at least five months before the date of discharge. The evidence is uncontradicted that Roy was commended by two of the three Board members within days before he was fired for “incompetence.⁵ Concerning the weight to be given to evidence of this character, White v. State of California, 21 Cal.App.3d 738, 760, states: “[A]n opinion [or conclusion] is no better than the reasons given for it [citation], and if it is ‘not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.’ (Emphasis added . . . [citations].)”

The Board mistakenly assumed Superintendent Roy had a duty to report on the existence of or the progress of union activity, or of his own interest in being a member of the Union, and that his failure to do so constituted grounds for discharge. Ball v. City Council, 252 Cal.App.2d 136, 142-143, held the Chief of Police of the City of Coachella, although his job was terminable at the will of the city council, could not be terminated in violation of rights guaranteed to him by Government Code sections 3500-3509. Superintendent Roy is, no less than the Chief of Police of Coachella, entitled to be free from interference, intimidation or coercion because of exercise of his right to join or participate in union activity.

We conclude from a careful consideration of the entire record that the challenged trial court's findings are not supported by substantial evidence. The uncontradicted evidence of union animus, as cause of discharge, conjoined with lack of substantial evidence of a present legitimate business reason, compels the conclusion the primary cause, the moving cause, for discharge of the Browns, Roy and George, was their active participation in organizing a union.

Whether our basis of reversal be failure to make requested material findigs or insufficiency of the evidence to support the findings actually made, we conclude it is going too far for the trial court “to bundle [its] findings on serious factual is-issues into a few phrases” and pass them on to this reviewing court as findings (Voss v. Friedgen, 141 Cal.App.2d 135, 143).

This is the third appeal, the third rejection of the Board's position. We are authorized to minimize litigation at the trial court level by drawing our own findings of fact (Code Civ. Proc., § 909). This case cries for such solution. To that end, we make the following findings of fact.

1. Plaintiff Elbert L. Roy Brown was superintendent, employed by defendant Escondido Cemetery District for approximately four years preceding May 16, 1972, on which date he was discharged by the board of trustees of the Escondido Cemetery District.

2. Only after discovery of Elbert L. Roy Brown's participation in the organizational efforts of the Union, the board of trustees determined to and did promptly terminate his employment.

3. No legitimate business reason existed in May 1972 for discharge of Elbert L. Roy Brown.

4. Participation in, failure to notify the Board of union activity at the cemetery, was the moving cause for the discharge of Elbert L. Roy Brown.

5. Plaintiff George R. Brown was, for many years prior to May 1972, a satisfactory maintenance man employed by the Escondido Cemetery District.

6. No legitimate business reason existed in May 1972 for discharge of George R. Brown.

7. Active participation in formation of the Union, voicing legitimate grievances concerning job-wage conditions to the Board, were the moving causes for the discharge of George R. Brown.

From the foregoing we conclude plaintiffs were discharged in violation of the Meyers-Milias-Brown Act (Gov. Code § 3500 et seq.).

The judgment is reversed with directions to the trial court to make and enter the foregoing findings of fact and conclusion of law and to conduct further hearing to determine the loss of wages and benefits as shall appear to be the proximate result of the wrongful discharge and to enter judgment requiring the board of trustees to reinstate Elbert L. Brown and George R. Brown to their former employment and pay each the amounts of wages or benefits found due.

FOOTNOTES

1.  Plaintiffs requested additional findings as follows:

FOOTNOTE.  FN“5. Plaintiff Elbert L. (Roy) Brown was the superintendent employed by the defendant Escondido Cemetery District, for approximately four years preceding May 16, 1972, on which date he was discharged by the Board of Trustees of Escondido Cemetery District.

FOOTNOTE.  FN“6. Plaintiff, Elbert L. (Roy) Brown was, on numerous occasions, complimented by the individual members of the Board of Trustees of Escondido Cemetery District for doing an excellent job as superintendent. On May 13, 1972, two of the three Trustees, Jack Owens and Fred Bevens, expressed their satisfaction with the job Elbert L. Brown was doing as superintendent of the Escondido Cemetery District.

FOOTNOTE.  FN“7. At the regularly scheduled monthly meeting of the Board of Trustees of the Escondido Cemetery District on May 13, 1972, there was no mention by any of the Trustees of any dissatisfaction with Elbert L. Brown's performance of his duties as superintendent. On the morning of May 16, 1972, an employee by the name of Wesley Smiley, advised the Board of Trustees of defendant Escondido Cemetery District that the employees of the cemetery district were joining or organizing a union.

FOOTNOTE.  FN“8. Immediately following the notification by Smiley of the employees' intentions, the Board of Trustees of defendant Escondido Cemetery District, held a meeting with Elbert L. Brown during which meeting the Trustees told Elbert L. Brown that they would get rid of him as superintendent for failing to advise the Board of Trustees of the employees' efforts to organize or join a union.

FOOTNOTE.  FN“9. Immediately following the meeting with Elbert L. Brown on May 16, 1972, at a specially called executive meeting without notice, the Board of Trustees of defendant Escondido Cemetery District, decided to and did terminate the employment of Elbert L. Brown as superintendent of defendant Escondido Cemetery District on account of his failing to advise the Board of Trustees of the employees' organizational efforts and further because of Elbert L. Brown's notification to the Board of Directors of his own desire to be represented by the Union.

FOOTNOTE.  FN“10. On May 17, 1972, the Board of Trustees of the Escondido Cemetery District met with all of the Employees of the Escondido Cemetery District, excluding Elbert L. Brown, and interrogated the employees regarding their desires to be represented by the Union. Plaintiff, George R. Brown was selected by the employees to act as their spokesman at this meeting. George R. Brown expressed, among other things, the employees' dissatisfaction with the overtime policy followed by the Escondido Cemetery District and cited as an example of the employees' dissatisfaction that frequently the employees were required to work overtime on account of lengthy funeral services conducted by some ministers at the cemetery.

FOOTNOTE.  FN“11. At no time during the period of six months prior to May 17, 1972 was George R. Brown careless or reckless in his work habits, nor did he endanger anyone he was working with or the equipment he was using. He was at all times during said six month period, at least, a willing worker and well liked by his fellow employees and did not cause any embarrassment or difficulty for the defendant Escondido Cemetery District and/or the Board of Trustees.

FOOTNOTE.  FN“12. On May 17, 1972, Bill Bowers, a member of the Board of Trustees of the Escondido Cemetery District, threatened George R. Brown with termination of his employment unless George R. Brown gave up his right to be represented by a Union.

FOOTNOTE.  FN“13. On numerous occasions, prior to May 17, 1972, Bowers threatened employees of the Escondido Cemetery District with discharge in the event they sought to be represented by a Union.

FOOTNOTE.  FN“14. On or about May 19, 1972, Bowers told employees of the Escondido Cemetery District that all employees would be fired and replaced if they did not give up their right to be represented by a Union and placed an advertisement in the Escondido Daily Times Advocate for replacement employees.

FOOTNOTE.  FN“15. Immediately following the above described meeting with employees on May 17, 1972, the Board of Trustees of the defendant Escondido Cemetery District decided to terminate the employment of George R. Brown solely on the basis of the remarks he had made to the Trustees regarding the length of time ministers took to conduct services at the cemetery.

FOOTNOTE.  FN“16. On May 20, 1972, the chairman of the Board of Trustees, Bill Bowers, terminated the employment of George R. Brown, solely on the basis of his above described remarks to the Board of Trustees on May 17, 1972.

FOOTNOTE.  FN“17. On June 14, 1972, plaintiffs, George R. Brown and Elbert L. Brown, requested a formal administrative hearing before the defendant Board of Trustees to present evidence on their behalf in support of reinstatement of their employ with defendant Escondido Cemetery District. The request for an administrative hearing was never considered by the defendant Board of Trustees and no hearing was granted to plaintiffs Elbert L. Brown or George R. Brown regarding their terminations.”

FOOTNOTE.  FNPlaintiffs requested specific findings of fact and conclusions of law on the following issues:

FOOTNOTE.  FN“1. Whether or not Elbert L. Brown's participation in Union activities and his expressed desire to do so were in any way responsible for his discharge from the employ of the Escondido Cemetery District dba Oak Hill Memorial Park.

FOOTNOTE.  FN“2. Whether or not George R. Brown's participation in Union activities and his expressed desire to do so were in any way responsible for his discharge from the employ of the Escondido Cemetery District dba Oak Hill Memorial Park.

FOOTNOTE.  FN“3. Whether or not George R. Brown's representation of himself and on behalf of his fellow employees at the meeting with the Board of Trustees of defendant Escondido Cemetery District, wherein George R. Brown criticized the policies of the Board of Trustees regarding the length of funeral services and overtime policy, were responsible in any way for his discharge from the employ of the Escondido Cemetery District, dba Oak Hill Memorial Park.

FOOTNOTE.  FN“4. On what specific occasions was plaintiff George R. Brown careless or reckless in his work habits and, specifically, when did he endanger those he worked with and the equipment he operated.”

2.  The uncontradicted facts are: In early 1972, the employees of the Board, including Superintendent Roy, determined to join Laborers' International Union No. 89. Each employee signed a card authorizing such representation. The Board had no knowledge of the union activity. Thus at the May 13, 1972 meeting of the Board there was no mention by it of any dissatisfaction with Roy or his performance of duties. However, on the morning of May 16, 1972, employee Wesley Smiley advised Trustee Bowers of the union activities. Smiley was an adverse witness, essentially hostile to the union activity. Let Smiley speak for himself:

FOOTNOTE.  FN“. . . I was on the hill working . . . and Norm approached me and he said, ‘Mr. Bowers will roll over in his grave when he finds out that the union's out here.’ And I looked at Norm and said, ‘You mean they don't know about it?’ And, he said, ‘No, not that I know of . . . . [I]t made me . . . real mad . . . .

FOOTNOTE.  FN“. . . I went down and told Roy Brown I quit, and I got my car and I pulled out quite fast — burned a little bit of rubber — and went over to Mr. Bowers house . . . . I asked Mr. Bowers if he knew that we were trying to organize a union and his eyes almost popped out of his head. He said ‘No, I don't know it.”’

FOOTNOTE.  FNSmiley and Bowers drove to the cemetery after picking up Trustee Owens, and telephoned the alarm to Truste Beven. The group confronted Superintendent Roy:

FOOTNOTE.  FN“[A]nd Mr. Bowers asked Roy Brown why he wasn't told about the union coming out there, why he wasn't informed about it. And Roy said that he didn't think it was necessary . . . . [T]hey asked Roy why and they said he's been given two or three chances on other things that had happened out there, and this was the last straw and they'd have to talk about it . . . .

FOOTNOTE.  FN“Q. Do you remember during the conversation between the Board members and Roy Brown whether any of the Board members asked Roy if he belonged to the union?

FOOTNOTE.  FN“A. Yes, sir.

FOOTNOTE.  FN“Q. Do you recall what Roy Brown said?

FOOTNOTE.  FN“A. . . . I couldn't give an honest answer to that, because I don't really remember.”

FOOTNOTE.  FNThe uncontradicted statement of George describes the statements of Bowers in the presence of witnesses:

FOOTNOTE.  FN“Then he [Bowers] got kind of mad and he said, ‘Well, you can go ahead and join the union, but you're not — or, nobody else will bring this damn union into the cemetery. I'll fire you all at 12:30.”

FOOTNOTE.  FNThe Bowers went to Norman Berry and:

FOOTNOTE.  FN“. . . Bill called him out by the work bench and says, ‘How do you feel about the union,’ and Norman says, ‘I'm going to go along with the rest of the men.’ Then, he says, ‘I'll fire you at 12:30.”

FOOTNOTE.  FNSix witnesses described Bowers' conversation as: “He talked to George Brown and told him that he and anyone else that was wanting to go union wouldn't be there upon noon today. He told Norman the same thing.”

FOOTNOTE.  FNTrustee Bowers admitted the events described by Smiley. He confirmed Smiley told him about the men wanting to be represented by the Laborers' Union. He said:

FOOTNOTE.  FN“I says I don't know; what do you mean? Well, he says, ‘They are forming a union out there and they are going to strike you guys on Memorial Day.’ They were going to walk out.

FOOTNOTE.  FN“So I immediately got in touch with Fred and Jack and went out to find out what it was all about.

FOOTNOTE.  FN“Q. And how did you do that?

FOOTNOTE.  FN“A. We went to the cemetery and asked the men.

FOOTNOTE.  FN“Q. Did you call the men into a meeting? Did you call them together for a meeting?

FOOTNOTE.  FN“A. Right. We waited until they finished their lunch. We waited outside until they finished their lunch. The lunch hour was over, and then we talked to the men.”

FOOTNOTE.  FNWhen specifically questioned in deposition concerning his anti-union statements the tenor of his answer is as follows:

FOOTNOTE.  FN“Q. Did anyone say . . . the men were stabbing the trustees in the back by going to the union . . . .

FOOTNOTE.  FN“A. Not that I know of.

FOOTNOTE.  FN“Q. Did anyone ask how the union came out there in the first place?

FOOTNOTE.  FN“A. No, I don't remember of anybody asking.

FOOTNOTE.  FN“Q. Was it your impression that all of the men wanted to join the union?

FOOTNOTE.  FN“A. Well, I didn't know . . . .”

FOOTNOTE.  FNOn page 26 of his deposition, Bowers seven times “doesn't recall,” “doesn't remember,” “doesn't know.” Candor requires the conclusion that Bowers does not deny his anti-union animus.

FOOTNOTE.  FNFollowing the confrontation with Roy, the three trustees waited for the men at the lunch room. There a vigorous confrontation took place. The employees voiced grievances concerning late pay checks. The trustees questioned the employees about their reasons for wanting to join the Union. George's complaints of lack of overtime pay for being kept late by reason of lengthy graveside sermons were aired to the Board.

3.  Owens testified:

FOOTNOTE.  FN“A. To the best of my ability we asked Roy Brown how long he had known of the interest in the men joining the union.

FOOTNOTE.  FN“Q. And what was Mr. Brown's response?

FOOTNOTE.  FN“A. To the best of my ability he said it was about a month or so ago.

FOOTNOTE.  FN“Q. And then what happened?

FOOTNOTE.  FN“A. We then asked why we were not informed of this at our regular Board meeting and if he had had any correspondence with the union. And at that time he said, no, that he had not but the men had. Also, at that time we asked him if he had signed a union card. He again said, ‘No.’ Later he said he did, and we proved it, that he had already signed a union card at that time.

FOOTNOTE.  FN“Q. And when was that?

FOOTNOTE.  FN“A. Prior to May, this May meeting we're talking about, sir.

FOOTNOTE.  FN“A. . . . I thought that it was wrong of him not to bring this to the Board, that the men certainly were entitled to a union representative or a form of union.

FOOTNOTE.  FN“Q. Did you tell Roy Brown that?

FOOTNOTE.  FN“A. Yes, I did, sir, but that it should have been brought to the Board. And he said that — I don't remember what he said word for word.

FOOTNOTE.  FN“Q. What happened after that?

FOOTNOTE.  FN“A. In fact, I don't even remember what else transpired that day, because I personally was pretty upset with Roy Brown and —

FOOTNOTE.  FN“Q. Why were you upset with Roy Brown?

FOOTNOTE.  FN“A. For him not bringing this correspondence and union activities to the Board when it is his job to do so, because he is our only communication between the employees and the trustees of the Cemetery District. He's our spokesman and theirs, too.

FOOTNOTE.  FN“Q. I take it, you didn't want a union to represent the employees?

FOOTNOTE.  FN“A. I never said any such a thing.

FOOTNOTE.  FN“Q. Didn't you say, or am I misquoting you, that you didn't feel that the size of the cemetery warranted union representation?

FOOTNOTE.  FN“A. At that time I felt the cemetery was not large enough for a union.

FOOTNOTE.  FN“Q. Did you have a meeting among the trustees following your conversation with Roy Brown?

FOOTNOTE.  FN“A. Not at that time.”

4.  According to Trustee Bowers:

FOOTNOTE.  FN“Q. Why was [George] terminated?

FOOTNOTE.  FN“A. Because he was dictating to how long the ministers could preach and dictating what equipment the Trustees should buy for the cemetery.”

FOOTNOTE.  FNGeorge's complaint, part of his grievances made to the Trustees at the noon lunch room confrontation, to quote Bowers, “He stated it right before the Board, all three members of the Board.

FOOTNOTE.  FN“Q. Was there a minister present?

FOOTNOTE.  FN“A. No.”

FOOTNOTE.  FNThe matters recited in the findings concerning improper handling of equipment relate to the period between 1970 to 1971.

5.  The reasons for firing Roy, according to Trustee Beven:

FOOTNOTE.  FN“[W]e gave Roy Brown two months to carry out the wishes of the Board or be fired. . . .[W]hen this trouble came to our attention, he did not notify the Board and we felt that there was nothing more we could do, except to ask him . . . for his resignation, because he had not informed the Board of things that were going on.

FOOTNOTE.  FN“Q. So you fired him because he didn't notify the Board that the men wanted to belong to a union; is that correct?

FOOTNOTE.  FN“A. No, we had no notice of it that I know.

FOOTNOTE.  FN“Q. Is that the reason you fired him?

FOOTNOTE.  FN“A. That was part of it, because he had — under the Brown Act he was to keep us informed at all times of what was going on. On that — he failed in that completely. And, we just couldn't go any farther with it. We just had to do something.”

FOOTNOTE.  FNAccording to Bowers, Roy was fired because “We didn't think he was doing the proper supervision of the cemetery.

FOOTNOTE.  FN“Q. In what way?

FOOTNOTE.  FN“A. Well, he was too slow about getting things done and not a proper supervisor of the men.

FOOTNOTE.  FN“Q. What was he too slow to accomplish?

FOOTNOTE.  FN“Getting things done. For instance, he cut down trees and it was five months before he got the stumps pulled out.

FOOTNOTE.  FN“Q. When did that happen?

FOOTNOTE.  FN“A. Well, that was in — we cut them down in December of '70 and we didn't get the stumps out until April of '71.”

FOOTNOTE.  FNIndividual proprietorship that was set up after corporation's ceasing of business operations due to financial losses may not be ordered to remedy corporation's prior unfair labor practices, where proprietorship is not alter ego of corporation.

STANIFORTH, Justice

GERALD BROWN, Presiding Justice, and COLOGNE, Justice, concur.