295 N.L.R.B. 905 (N.L.R.B. 1989)

Payfair Market

National Labor Relations Board - Board DecisionsJun 30, 1989

295 N.L.R.B. 905 (N.L.R.B. 1989)

PAYFAIR MARKET 905 El Farra Enterprises , Inc. d/b/a Payfair Market and United Food and Commercial Workers Union Local 1036, an affiliate with United Food and Commercial Workers International Union, AFL-CIO, CLC. Case 31-CA-16860 June 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 3, 1989, Administrative Law Judge William L. Schmidt issued the attached decision. The Charging Party filed a limited exception. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exception and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.I ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, El Farra Enterprises, Inc. d/b/a Payfair Market, Oxnard, California, its officers, agents, suc- cessors, and assigns , shall take the action set forth in the Order, except that the attached notice is sub- stituted for that of the administrative law judge. i In adopting the broad proscription, contained in the judge's recom- mended Order , requiring the Respondent to cease and desist from "in any other manner restraining and coercing employees ," we rely only on the Respondent 's unfair labor practices at its Oxnard location found here and the Respondent 's unfair labor practices previously found to have been committed at its Fresno location In addition , we note that the judge inadvertently omitted from the notice the following proviso - "WE WILL NOT discharge employees for speaking with union agents and pickets ." The revised notice correcting this error is attached Member Cracraft does not agree with her colleagues that a broad order is warranted in this case. To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about employee union activities. WE WILL NOT Solicit you to inform management about employee union activities. WE WILL NOT warn employees to prevent them from speaking with union agents or pickets. WE WILL NOT discharge you for speaking with union agents and pickets. WE WILL NOT in any other manner interfere with, restrain , or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer immediate and full reinstatement to James Brown as directed by the National Labor Relations Board. WE WILL make James Brown whole, together with interest required by law, for any loss of earn- ings and benefits suffered as a consequence of his discharge in October 1987. WE WILL expunge from our records any refer- ence to the discharge of James Brown in October 1987 and WE WILL notify Brown in writing that this action has been taken and that any reference to our unlawful conduct against him will not be con- sidered in any future personnel action related to him. EL FARRA ENTERPRISES, INC. D/B/A PAYFAIR MARKET Ann Weinman , Esq., for the General Counsel. Norman Jones, Esq. (Jones, Jones & Jones), of San Simeon, California, for the Respondent. David Rosenfeld, Esq. (VanBourg, Weinberg, Rogers & Ro- senfeld), of San Francisco, California, for the Union. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. United Food and Commercial Workers Union Local 1036, a/w United Food and Commercial Workers Inter- national Union , AFL-CIO, CLC (Union) charged that El Farra Enterprises, Inc., d/b/a Payfair Market (Re- spondent) engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (Act) by discharging James Brown. Based on that charge the Regional Director for National Labor Relations Board (Board or NLRB) Region 31 issued a complaint and notice of hearing before an administrative 295 NLRB No. 93 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD law judge . ' Respondent filed a timely answer admitting certain foundational allegations but denying that it en- gaged in the unfair labor practices alleged. I heard this matter on May 18, 1988, at Los Angeles. At the conclusion of the hearing the Union argued orally. Subsequently the General Counsel filed a post- hearing brief. Having now carefully considered the record , the demeanor of the witnesses who testified, the Union's oral argument , and the General Counsel's post- hearing brief, I conclude that Respondent violated the Act as alleged f :)r reasons set forth in the following FINDINGS OF FACT 1. ALLEGED UNFAIR LABOR PRACTICES A. Background The Payfair Market involved here is a retail supermar- ket located in Oxnard , California . At relevant times, the store was managed by Eugene Townsend . Townsend's immediate supervisor was Larry Fellbaum, Respondent's retail operations supervisor who hired the Oxnard em- ployees. Respondent commenced operating this facility on Sep- tember 26, 1987, after purchasing the store from its pred- ecessor . The predecessor operated the store under the name Mayfair Market and recognized the Union as the store employees ' collective-bargaining representative. In preparation for operating this Oxnard supermarket, Re- spondent apparently established its own terms and condi- tions of employment and accepted applications from 14 former employees of the Mayfair Market . Subsequently, Respondent claims to have offered employment to all 14 of these applicants; 6 accepted the offer but only 4 there- after appeared when scheduled to work. 2 Admittedly, Respondent declined to recognize the Union as the representative of its Oxnard employees. Shortly after the Payfair store opened for business, the Union commenced handbilling near the store entrances urging customers to boycott the store . Later, on October 5, 1987, the Union commenced picketing near the Payfair Market entrances for the same objective. According to Townsend 's state court declaration, the union handbills falsely accused Respondent of cutting employee wages in half and refusing to hire former Payfair employees. In state court Respondent sought to enjoin the union picketing claiming that a number of disruptive incidents had resulted . Store Manager Townsend 's declaration al- leged the following incidents occurred between October 5 and 15, 1987: (1) an employee of the store's security service was threatened with physical harm; (2) unknown customers provoked loud disruptions over unusually minor matters at the checkout counters; (3) union pickets loudly accused an individual related to the store owner I The complaint issued on December 23 , 1987. On April 5, 1988, the complaint was amended primarily to allege additional unfair labor prac- tices within the meaning of Sec 8(a)(1) of the Act. Hereafter "com- plaint" refers to the first amended complaint , the operative pleading. 2 This finding concerning the employment applications and offers in- volving former Mayfair employees is contained in a declaration of Town- send submitted in a state court injunction proceeding . The claims made therein about former Mayfair employees were not contested in this case. of being a child molester, an Iranian , a bastard , and en- gaging in sexual abuse of employees ; 3 (4) union pickets distributed a competitor's advertisements to customers entering and leaving the store ; (5) union pickets harassed customers by, inter alia , accusing them of financing ex- plosive mines in the Persian Gulf by shopping at the store; (6) union pickets yelled epithets at Townsend from the store entrances while he was engaged in his duties inside the store; and (7) on October 15, 1987, the Union sponsored mass picketing by 50-plus yelling and chanting individuals at the store entrances, and after the pickets disbanded Townsend discovered that a store toilet had been pulled from its mounts and water was leaking to ad- jacent areas of the store. Based on Townsend 's accusations, Respondent ob- tained a temporary restraining order on October 19. Later, on November 2, 1987, a preliminary injunction issued limiting the Union's picketing activities. In the meantime , Townsend conducted meetings of other employees on October 14 to explain the Compa- ny's general policies, dress code , and disciplinary proce- dures . Townsend explained that an employee who re- ceived one verbal and three written warnings would be subject to dismissal . One employee, David Bernal, re- called that Townsend urged employees to not let the Union's pickets bother them and to inform him of any mistreatment by the pickets. Another employee, Gabriela Adame, reported that Townsend specifically warned em- ployees not to speak or associate with the pickets at the risk of being replaced . Townsend was not questioned concerning either report.4 The sum of General Counsel's complaint in this case is that Townsend unlawfully warned employee James Brown for associating with the union demonstrators and then discharged Brown on October 16-the day follow- ing the large union demonstration -for that reason. The General Counsel also claims that Townsend subsequently solicited David Bernal to report union activity by store employees and later quizzed Bernal to identify the em- ployee who solicited Bernal to sign a union card. s The individual referred to is Henry El Farra, a nephew of Mahmoud El Farra , the Respondent's president . In making this finding I rely on both the Townsend declaration and the decision of Administrative Law Judge Michael Stevenson , JD-(SF)-132-88 (Nov 23, 1988) involving the Respondent's actions at the Mayfair stores it purchased in Fresno, Cali- fornia. I take official notice of that decision In that decision , Judge Ste- venson finds that Henry El Farra 's conduct was the subject of an EEOC action alleging sexual harassment of a Fresno employee • The record is not clear as to whether Bernal and Adame attended the same meeting . In her brief, the General Counsel asserted that this testi- mony of these two witnesses is relied on only as evidence of union animus and not as evidence of independent unfair labor practices I do not rely on this testimony for any purpose . If true, Bernal 's testimony evidences no union hostility whatsoever ; rather, it implies merely an offer to protect employees from unnecessary harassment by union pickets. Adame's claim, on the other hand , would plainly constitute an unfair labor practice if found to be true . Although the statement is similar in nature to remarks attributed to Townsend by another employee, and to Henry El Farra at Fresno , no effort was made by the General Counsel to provide corroboration for Adame's assertion . Accordingly, in view of the lack of corroboration, the unusually restricted purpose for which Adame 's testimony was offered, and the ample evidence of Townsend's union animus, I decline to rely on Adame's assertion that Townsend pub- licly threatened to replace any employee caught speaking to or associat- ing with union pickets. PAYFAIR MARKET 907 B. The Complaint Allegations 1. Allegations of interference , restraint, and coercion Complaint paragraph 6 alleges that Townsend: (1) on three separate occasions in September and October pro- hibited an employee from talking to the union pickets; (2) asked an employee to inform him if any employee at- tempted to organize the other store employees ; and (3) interrogated an employee concerning the identity of per- sons attempting to organize employees for the Union. Respondent denied all such allegations. a. Warnings to James Brown Shortly after the picketing began James Brown spoke with Union Representative Dominick Tunzi in front of the store after Brown 's work hours . Brown claims he was able to see Townsend watching him speak with Tunzi from within the store . The following morning, Townsend called Brown to his office and stated: "I'm giving you a warning about talking to the Union people." On October 15, the day of the Union's large demon- stration in front of the store , Brown again spoke to Tunzi as he returned from his lunchbreak . At approxi- mately 3 p.m., Brown 's quitting time, Townsend called Brown to his office where he told Brown that he was giving him "another warning about talking to the Union people out front." Tunzi generally corroborated Brown's claim that they spoke to each other, and that Brown also spoke with union pickets after work and while passing to and from lunch immediately outside the store . Tunzi additionally asserted that management representatives frequently watched the pickets for long periods of time from inside the store. Although Townsend denied that he ever saw Brown speak with any union "agent" prior to Brown's discharge or that Brown ever admitted talking with any union agents, Townsend did not specifically deny that he warned Brown for engaging in such conduct. b. Townsend-David Bernal exchanges (1) Bernal 's version David Bernal , a Payfair produce clerk, was at his work area on approximately October 21 . On this occa- sion Townsend told Bernal that he needed a reliable person to inform him if the Union attempted to organize the store employees . Bernal agreed to provide that infor- mation. Bernal denied that he had ever made his sentiments known to Townsend about unions . Bernal also claimed he was given no reason by Townsend for seeking such information and that he was given no assurances if he re- fused to provide the requested information. Approximately 3 days later Bernal was asked by an- other employee to sign a union card . Later that day Bernal advised Townsend of the organizational effort. However, Bernal refused Townsend 's request for the identity of those involved. (2) Townsend 's version Townsend acknowledged exchanges with Bernal about the Union but his testimony differs appreciably from Ber- nal's. By Townsend 's account , he happened to be in the produce department on approximately the day the large group of pickets demonstrated outside the store . Bernal started a conversation with Townsend about the Union. Townsend recalled that Bernal was "bitter " about the Union because he had been "burned" by it-that he "had missed his dues and lost his benefits ." Bernal asked Townsend to let him know if there was anything he could do to help. Townsend purportedly told Bernal to let him know if anyone was in the store organizing. A few days later , Bernal advised Townsend in the Tat- ter's office that some store employees were organizing. Townsend thanked Bernal and that ended their conversa- tion. c. Conclusions Section 7 of the Act protects an employee's right to speak and associate with union agents and sympathizers. That right, however, is not absolute as an employer may lawfully restrict such activity where it interferes with the performance of work the employee is hired to do. See Our Way, Inc., 268 NLRB 394 (1983 ). But here, Re- spondent made no effort whatsoever to defend the com- plaint allegation supported by Brown's testimony on the ground of some legitimate business policy or exigency; indeed , Respondent made no effort at all to rebut the tes- timony of Brown apart from Townsend 's sparse denial that he ever observed Brown talking with any union agent before his termination. Brown's testimony , which I credit,5 establishes that Townsend , Respondent 's admit- ted agent and supervisor , abridged the right of employ- ees to speak and associate with the union agents and pickets either on their own time or at anytime. Accordingly , I find Townsend's oral warnings to Brown violated Section 8(a)(1) of the Act, as alleged. In general Section 8(a)(1) of the Act has also been in- terpreted to prohibit employer pressure-subtle or other- wise-designed to secure information about employee union activities or sympathies from employees them- selves . On the other hand, employer questions to open and notorious union activitists are viewed as outside the proscriptions of Section 8(a)(1) in certain circumstances. See Sunnyvale Medical Clinic , 277 NLRB 1217 (1985), and the cases discussed therein . The exchanges between Bernal and Townsend evokes the principles broadly de- scribed above . If those exchanges came about as de- scribed by Bernal, Section 8 (a)(1) was obviously trans- gressed; if Townsend is believed , the question of the complaint 's merit on this issue is, even in the most favor- able light, highly questionable. I credit Bernal 's version . Viewed chronologically, the Bernal-Townsend exchange occurred at or after several 5 Although I recognize that testimony need not be credited merely be- cause it is uncontradicted , no reasonable justification exists for refusing to credit Brown 's testimony in the absence of contradictory testimony by Townsend Brown appeared sincere and straightforward while testifying. 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other significant incidents in this labor dispute. If even some of the events attributed to the Union and its agent Tunzi occurred as described in Townsend's court decla- ration , it is highly likely that Townsend was quite re- vulsed by the Union's actions . Having observed Town- send while he assisted counsel in this hearing and as he testified, I find it impossible to conclude that he weath- ered the abuse described in his declaration with the mod- icum of stoicism his testimony on this issue reflects. Put another way, if events described in his declaration are actually true, I am convinced one of his preoccupations at the time would have been potential union organizing activities among his store subordinates . This conclusion makes Bernal 's version more probable than not. Accord- ingly, I find Townsend's solicitation of Bernal to report employee union activity and his subsequent questions concerning the identity of employees engaged in union activity violated Section 8(a)(1) of the Act as alleged. At- lanta Newspapers, 264 NLRB 878, 884 (1982). 2. The allegation of employment discrimination The General Counsel alleges that Brown was dis- charged in violation of Section 8(a)(1) and (3) of the Act on October 16, 1987. Respondent denies the allegation. a. The General Counsel's case By his own admission , Brown was approximately 35 minutes late for work on October 16 because he over- slept . When Brown arrived at work he went immediately to Townsend's office to explain his tardiness . Townsend, totally unsympathetic , discharged Brown at that time. Brown said Townsend explained that he was discharged because he was late for work and had been talking to the union pickets . Townsend told Brown to come back later for his final paycheck. Brown returned home arriving shortly before 7 a .m. where he explained his misfortune to his father. Later Brown returned to the store and waited until ap- proximately 8:45 a.m. Townsend 's wife (the store book- keeper and the person apparently responsible for cutting Brown 's final check) still had not arrived at the store so Brown once again returned home . By this time Brown's mother had returned from her job , listened to her son's woe, and instructed him to return to the store and wait there until he was given his final check. Brown 's parents were both called as witnesses and roughly confirm the time sequence of their son's odyssey between the store and home that morning . Inferentially, their testimony contradicts the Respondent 's claim that Brown did not arrive for work until approximately 10 a.m. that day. By approximately 10:30 a .m. Brown was provided with his final paycheck and a termination slip which as- serted that he had voluntarily quit his employment. The General Counsel introduced evidence in the form of company documents showing that at least three other employees had not been deemed to have voluntarily quit their employment until they had been absent without ex- planation for more than 2 days. b. Respondent's case Respondent's written position statement submitted during the investigation states: Brown was discharged on October 16, 1987, for his failure to show up for his scheduled work shift at 6 a .m. that morning . A copy of his termination record is enclosed herein . At the time this termina- tion record was filled out by Gene Townsend, Mr. Townsend thought that James Brown had voluntar- ily quit his employment . He later showed up at the store some four hours after his shift was to start, but by that time Gene Townsend had already replaced him. While Payfair Market has work rules which it in- stituted in October calling for verbal and written warnings before termination , that procedure is fol- lowed for misconduct that does not include failure to show up for work. Mr. Townsend considered Mr. Brown 's failure appear for work on October 16, 1987 to be an indication that he had voluntarily quit his employment. Townsend testified that Brown did not arrive for work until approximately 10 a.m. Although he acknowledged that Brown came to his office and informed him that he was late because he overslept , Townsend , nonetheless, still considered Brown to have quit his employment. According to Townsend , when Brown failed to appear for work at 6 a.m. as scheduled on October 16, he tele- phoned Lillian Cabello to come to work as Brown's re- placement . However, Cabello's timecards for this period reflect that on the two Fridays Cabello worked during the period of Brown's employment, she clocked in prior to 6 a.m. on both occasions. Townsend also claimed that he had given Brown prior verbal warnings concerning his work conduct . Specifi- cally Townsend , said he had warned Brown when he found him on one occasion eating a cake for which he had no receipt . On another occasion , Townsend set out to look for Brown after he was missing for more than half an hour and found him hiding behind a water ma- chine outside the store . Finally, the day prior to his dis- charge Townsend said Brown was responsible for a com- motion in the parking lot. When Townsend investigated with a security guard , Townsend said he found that Brown 's vehicle was stopped sideways in the lot and that Brown had nearly hit a child on a bicycle . Purportedly, when Townsend told Brown that he intended to call the police, Brown exited the lot at a high rate of speed caus- ing the tires on his vehicle to squeal. Brown denied that any of these latter three incidents occurred . There is no mention of the incidents on Brown's termination slip and no indication that Town- send addressed any of these incidents at the time of Brown's discharge on October 16. No security guard tes- tified in this proceeding. c. Conclusions The General Counsel plainly established a prima facie case that Brown 's discharge was discriminatory motivat- PAYFAIR MARKET 909 ed. Indeed , the General Counsel provided direct evi- dence of an unlawful motivation in the form of Town- send 's statement that Brown was being terminated be- cause he was late and had been speaking with the union people. The circumstantial evidence too lends substantial weight to the General Counsel's prima facie case. Town- send 's state court declaration describes conduct by union agents and pickets which would cause any reasonable person to harbor animus toward the Union. The prior warning to Brown not to speak with the union agents and pickets as well as Townsend's solicitation of Bernal to report union activity among employees supports the conclusion Townsend harbored substantial union animus. In addition , the findings of Judge Stevenson involving the Fresno store strongly suggest that Respondent in general maintained a policy of opposing union represen- tation among its employees . In these circumstances, Brown's open and notorious liaison with union agents and pickets provides such a substantial explanation for his October 16 discharge as to require Respondent to go forward with evidence showing that, notwithstanding, Brown would have been lawfully discharged on October 16. Wright Line, 251 NLRB 1083 (1980). Respondent has not met the burden imposed by Wright Line. Instead , much of Respondent's evidence actually supports the conclusion I have reached that Brown's dis- charge was discriminatory motivated. Townsend's insistence that Brown quit his employment simply mischaracterizes the event . Brown was plainly discharged . Townsend's mischaracterization cannot be excused on the ground that Brown constructively quit by his tardiness . In other instances where employees failed to appear for scheduled work, Townsend did not act to terminate the absent employee immediately as he did in Brown's case . This evidence strongly supports the con- clusion that Brown 's termination was motivated by some reason other than his October 16 tardiness. Respondent's claim that Brown's absence necessitated calling a replacement employee (Cabello) does not appear truthful. To the contrary, it appears that if Ca- bello was in fact called as a replacement for Brown, she was asked to appear for work even before it was known that Brown would be late for work. This evidence too is consistent with the conclusion that some other reason motivated Brown's discharge . Furthermore, even Re- spondent acknowledges it did not follow its own discipli- nary procedures (giving employees one oral and three written warnings) in Brown's instance . While such pro- cedures might be deemed as mere window dressing by some managers , adherence to stated procedures in Brown's case would have at least advanced Respondent's assertion that his termination was legitimate . The failure to adhere to such procedures demonstrates the precipi- tous nature of Brown 's termination and lends further evi- dence to the conclusion that there was another reason for Brown's termination. Respondent made no significant attempt to rely on far more serious misconduct which Townsend claims is present . Brown's purported reckless and life-threatening driving in Respondent 's parking lot the evening prior to his discharge coupled with an extreme act of insubordi- nation by speeding away would seemingly merit some form of discipline. Yet there is no indication that Town- send even mentioned the incident the following morning. At the very least one would have anticipated a word of caution about driving in the parking lot knowing that Brown's state of mind might be disturbed as the result of his discharge. Moreover, Respondent made no effort to corroborate Townsend' s testimony about this serious in- cident . These circumstances strongly suggest the incident did not occur. Having carefully weighed the evidence concerning Brown 's termination , I find Townsend's explanation of his motivation for discharging Brown is not truthful. Almost each and every element of Respondent 's defense contains a grossly inexplicable circumstance which, con- sidered in sum , leads to my conclusion about Townsend's lack of credibility on this issue . Respondent 's failure to provide a truthful and plausible explanation of motive here permits the inference that its motive was unlawful. Shattack-Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). Such an inference is warranted here where General Counsel's case provides some direct evidence of unlawful motivation and the timing of Brown's discharge closely coincides with the other significant events in the labor dispute between Respondent and the Union. For the foregoing reasons, I find General Counsel has proven her complaint allegation that Brown was dis- charged in violation of Section 8(a)(1) and (3) of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The Respondent's unlawful activities described above, occurring in connection with its operations, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees concerning the union activities of other employees; by soliciting em- ployees to inform management of employee union activi- ty; and by orally warning employees to prevent employ- ees from speaking with agents and pickets of the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging and refusing thereafter to reinstate James Brown , Respondent engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The unfair labor practices specified in paragraphs 3 and 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I will recommend that Re- 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent be ordered to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. Because Respondent unlawfully discharged James Brown , my recommended Order requires Respondent to reinstate Brown to his former position or, if that position no longer exists, to a substantially equivalent position. In addition , my recommended Order requires Respondent to make Brown whole for any loss of pay and benefits incurred by his discharge in accordance with a backpay formula established in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest shall be added to the backpay in ac- cordance with New Horizons for the Retarded, 283 NLRB 1173 (1982); Olympic Medical Corp., 250 NLRB 146 (1980); and Florida Steel Corp., 231 NLRB 651 (1977). And see generally Isis Plumbing Co., 138 NLRB 716 (1962). My recommended Order further requires Re- spondent to expunge from any of its records any refer- ence to Brown 's discharge . When such action is complet- ed, Respondent must also notify Brown in writing that such action has been taken and that any evidence of his unlawful discharge will not be considered in any future personnel action affecting him. Sterling Sugars, 261 NLRB 472 ( 1982). The recommended Order here contains a broad pro- scription requiring Respondent to cease and desist from "in any other manner restraining and coercing employ- ees." In Hickmott Foods, 242 NLRB 1357 (1979), the Board departed from its policy of issuing such a broad remedial order in every discharge case . Instead, the Board adopted a new policy described as follows: In our opinion , as explained below, such an order is warranted only when a respondent is shown to have a proclivity to violate the Act or has engaged in such egregious and widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights . Accordingly, each case will be analyzed to determine the nature and extent of the violations committed by a respondent so that the Board may tailor an appropriate order. [Emphasis supplied.] Later in that decision the Board explained "repeat of- fenders and egregious violations of the Act would be subject to the traditional Board remedy for conduct which requires broad injunctive relief." Although any fair reading of Hickmott leads to the conclusion that the Board there read "respondent" and "repeat offenders" as synonymous in fashioning its ra- tionale, this case involves circumstances suggesting that that may not always be the case. Corporate entities , such as Respondent herein, act through agents . As Judge Stevenson 's decision involving the Fresno store shows , Respondent is new to this indus- try. To begin its operations, Respondent recruited Larry Fellbaum from "Warehouse Foods" to initially manage its about-to-be-acquired Fresno store. By October, Judge Stevenson found Fellbaum had been promoted to the newly created position of "retail operations manager, ef- fectively in charge of the Fresno store and the Oxnard store, another formerly unionized Mayfair store acquired by Respondent in late September." (JD-(SF)-132-88, slip op. at 7, including fn. 4.) The Oxnard store is in- volved in this case but not the Fresno case heard by Judge Stevenson. In Superior Warehouse Grocers, 277 NLRB 18 (1985), the Board affirmed my rulings, findings, and conclusions, and adoptcd my recommended Order wherein that re- spondent was found to have engaged in numerous viola- tions of Section 8(a)(1) and (3) of the Act. Fellbaum, as store manager in that case, was found responsible for the unlawful discharge of two employees (Tetreault and Lopez) who had signed union cards during an organiza- tional campaign; the prior unlawful reduction in their work hours; and interrogation and threats to discharge employees for engaging in union activity. In connection with the opening of the Fresno store, Fellbaum paid the most major role in the staffing of that store. Judge Stevenson found Respondent-principally acting through Fellbaum-discriminated against 31 former Mayfair employees for the object of avoiding union representation at that store. Judge Stevenson also found that Fellbaum engaged in other 8(a)(1) conduct but did not include a broad order because neither Gener- al Counsel nor Charging Party requested such an order. JD-(SF)-132-88, slip op. at 69 fn. 25. Likewise, at Oxnard, Fellbaum was also directly in- volved in the hiring of the store staff. This fact strongly suggests that in his role as Respondent's store operations manager, he exercised substantial oversight concerning personnel matters. My findings and conclusions here show that further serious unfair labor practices occurred at Oxnard following 2 months of unfair labor practices in Fresno. In sum , Fellbaum's unfair labor practice record in the 4-1/2-year period from March 1983 to October 1987 es- sentially is this: (1) 34 separate unlawful refusals to hire or discharges in which he was either directly involved or was in a supervisory capacity when they occurred; (2) 2 unlawful hours reduction cases ; and (3) numerous 8(a)(1) violations. Three major labor disputes have resulted from these actions; two of those disputes have resulted in the exercise of state power in the form of injunction pro- ceedings. This record demonstrates, in my judgment, that Fellbaum represents a clear and present danger to em- ployee rights guaranteed by the Act. Under these cir- cumstances, if Respondent chooses to employ a manager with such a reckless disregard of employee rights, its highest officials have a responsibility to exercise control of his conduct so as to prevent any reoccurrence of such activity. Although it is true that Respondent cannot be held liable for Fellbaum's entire record, it is for the vast majority of it. Where Respondent chooses to employ an individual in a responsible capacity whose proclivity to violate employee rights is so abundantly clear, I see no rational reason to read Hickmott so as to preclude the is- suance of a broad order at this time. Accordingly, I find that a broad order is justified here. Finally, the recommended Order requires Respondent to post the notice attached hereto as the Appendix in order to fully inform the employees of their rights and the outcome of this matter. PAYFAIR MARKET On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent , El Farra Enterprises , Inc. d/b/a Payfair Market, Oxnard , California , its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about employ- ee activities on behalf of, and sympathies for, United Food and Commercial Workers Union Local 1036, affili- ated with United Food and Commercial Workers Inter- national Union, AFL-CIO, CLC, or any other labor or- ganization. (b) Soliciting employees to inform management of em- ployee activity on behalf of Local 1036 or any other labor organization. (c) Warning employees because they speak with agents and pickets of Local 1036 or any other labor organiza- tion. (d) Discharging employees for speaking with agents and pickets of Local 1036. (e) In any other manner interfering with , restraining, coercing or discriminating against employees because they exercise rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer James Brown immediate and full reinstate- ment in the manner set forth in the remedy section. 6 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 911 (b) Make James Brown whole for any losses he may have suffered as a result of the discrimination found un- lawful herein in the manner set forth in the remedy sec- tion. (c) Expunge from its records any reference to the un- lawful discharge of James Brown , and notify Brown in writing that this action has been taken and that evidence of its unlawful conduct will not be considered in any future personnel actions involving him. (d) Preserve and, on request , make available to the Board or its agents for examination and copying , all pay- roll records, social security claimant records , timecards, personnel records and reports, and all other records nec- essary or useful for the determination of the amounts of backpay due under the terms of this Order, the propriety of any offer of reinstatement required by this Order and the action taken in compliance with paragraph 2(c) of this Order. (e) Post at its place of business in Oxnard , California, copies of the attached notice marked "Appendix."7 Copies of the notice , on forms provided by the Regional Director for Region 31, after being signed by the Re- spondent 's authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. r If this Order is enforced by a judgment of a United States court of appeals , the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."