Laboratory Corp. of America Holdings

National Labor Relations Board - Board Decisions

Feb 13, 2001

333 N.L.R.B. 284 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 284
Laboratory Corporation of America Holdings and
Service Employees International Union, AFL–
CIO, Local 339. Case 4–CA–26254
February 13, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND WALSH
On April 14, 1998, Administrative Law Judge James
L. Rose issued the attached decision. The Respondent
filed exceptions, a supporting brief, and an answering
brief, and the General Counsel filed cross-exceptions, a
supporting brief, an answering brief, and a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, and to adopt the recommended Order as modi-
fied2 and set forth in full below.
The judge dismissed allegations that the Respondent’s
executive vice president, Richard Novak, unlawfully
solicited grievances and promised benefits during a
meeting with employee Anne DeFeo.3 The judge rea-
soned that the “meeting [with DeFeo] was a benign and
typical visit by a new high level manager” and Novak’s
statements were “too ambiguous to constitute a violation
of the Act.” We find merit in the General Counsel’s ex-
ceptions to these findings.4

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s recommended Order to require the
Respondent to post the notice to employees at all its facilities within the
Pleasantville, New Jersey region, which were the subject of the Union’s
organizational campaign.
In his remedy section, the judge stated that he would not order the
Respondent to reopen the Linwood, New Jersey facility where dis-
criminatee Anne DeFeo had been assigned. The judge reasoned that
the discrimination against DeFeo would be fully remedied by requiring
the Respondent to offer her a substantially equivalent position in a
nearby facility. In his recommended Order, however, the judge re-
quired the Respondent to offer DeFeo reinstatement “to her former
job.” We shall modify the judge’s recommended Order accordingly.
3 The judge correctly found that during the same meeting Novak vio-
lated Sec. 8(a)(1) by granting DeFeo the benefit of an increased
lunchbreak.
4 We find it unnecessary to pass on the General Counsel’s exceptions
concerning whether the Respondent violated Sec. 8(a)(1) by granting a
wage increase to Pleasantville region employees during late March and
early April 1997, and by soliciting grievances and promising and grant-
ing benefits to employees on April 22, 1997. The finding of such addi-
tional violations would be cumulative and would not affect the remedy.
On March 31, 1997,5 Respondent’s operations man-
ager, Harry Bush, and Executive Vice President Richard
Novak visited the Linwood port where DeFeo worked
alone. Novak had been hired by the Respondent ap-
proximately 6 weeks earlier. DeFeo testified that, during
the course of this meeting, Novak told her he was there
just “to find out why I was unhappy and everybody else
and see if he [Novak] couldn’t help change things.” De-
Feo told Novak, inter alia, that she would like to have a
longer lunchbreak. She also informed him that the block
on long distance calls from her telephone was preventing
her from exchanging necessary information with doctors.
Novak agreed to the longer lunch period, said he would
look into the long distance block, gave DeFeo his home
phone number and toll-free office number, and told her
to “call him at any time, day or night, with any problem
and he would fix it.”
The Respondent failed to prove that before the union
campaign began, the Respondent had a practice of hold-
ing either group or individual meetings to solicit griev-
ances by managers. Indeed, DeFeo testified that she had
not been visited at her patient service center by either
Novak or Bush before March 31.
The relevant principles are well established. They
were recently summarized in Maple Grove Health Care
Center, 330 NLRB 775 (2000), as follows:

Absent a previous practice of doing so . . . the solicita-
tion of grievances during an organizational campaign
accompanied by a promise, expressed or implied, to
remedy such grievances violates the Act. [I]t is the
promise, expressed or implied, to remedy the griev-
ances that constitutes the essence of the violation.
[T]he solicitation of grievances in the midst of a union
campaign inherently constitutes an implied promise to
remedy the grievances. Furthermore, the fact an em-
ployer's representative does not make a commitment to
specifically take corrective action does not abrogate the
anticipation of improved conditions expectable for the
employees involved. [T]he inference that an employer
is going to remedy the same when it solicits grievances
in a preelection setting is a rebuttable one.

Here, the inference that Novak was promising to remedy
DeFeo’s grievances has not been rebutted. Contrary to the
judge’s finding, there is nothing ambiguous about Novak’s
statements. Novak asked DeFeo what changes could be
made to make her and other employees happy. This in-
quiry, in fact, elicited from DeFeo complaints about the

5 All dates hereafter are in 1997, unless otherwise specified.
333 NLRB No. 38
LABORATORY CORP. OF AMERICA HOLDINGS 285
lunchbreak and the blocking of long distance calls. Novak
immediately resolved one complaint, promised to look into
another complaint, and gave DeFeo his personal phone
numbers with the request that DeFeo call him “with any
problem and he would fix it.” We find that Novak solicited
grievances from DeFeo, promptly resolved one of her
grievances, and explicitly promised to “fix” others.
“Nor does the fact that [Novak] was a new [manager]
insulate [the Respondent] from the Board’s findings that
the [Respondent’s] . . . promises of benefits to its em-
ployees violated the Act.” St. Francis Federation of
Nurses v. NLRB, 729 F.2d 844, 853 (D.C. Cir. 1984).
This is particularly true here where the record shows that
Novak actually remedied one of DeFeo’s grievances.
See Blue Grass Industries, 287 NLRB 274 fn. 4, 286
(1987) (inference of promise of benefit arising from
grievance solicitation not rebutted by fact that manager
was newly appointed; in fact, respondent “actually cor-
rected some grievances identified by employees”).
Accordingly, for all these reasons, we find that the Re-
spondent violated Section 8(a)(1) by soliciting griev-
ances and promising to remedy them.
ORDER
The National Labor Relations Board orders that the
Respondent, Laboratory Corporation of America Hold-
ings, Linwood, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals
in order to discourage their union activities.
(b) Granting benefits to employees in order to discour-
age their union activities.
(c) Soliciting grievances from and promising benefits
to employees in order to discourage their union activities.
(d) Closing a facility, discharging, failing to rehire, or
otherwise discriminating against employees because they
engage in union or other concerted activity protected by
the National Labor Relations Act.
(e) In any like or related manner, interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Anne DeFeo full reinstatement to a substantially equiva-
lent position in the immediate area of the Linwood, New
Jersey facility, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(b) Make Anne DeFeo whole for any loss of earnings
and other benefits she may have suffered as a result of
the discrimination against her, in the manner set forth in
the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and
failure to rehire, and within 3 days thereafter notify Anne
DeFeo in writing that this has been done and that these
actions will not be used against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in the Pleasantville, New Jersey region cop-
ies of the attached notice marked “Appendix.”6 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed its facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
employees employed by the Respondent at any time
since March 18, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United Government

The National Labor Relations Board has found that we vio-
lated 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

6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten our employees with unspeci-
fied reprisals in order to discourage their union activities.
WE WILL NOT grant benefits to our employees in or-
der to discourage their union activities.
WE WILL NOT solicit grievances from and promise
benefits to our employees in order to discourage their
union activities.
WE WILL NOT close a facility, discharge, fail to re-
hire, or otherwise discriminate against our employees
because they engage in union or other concerted activity
protected by the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Anne DeFeo full reinstatement to a substan-
tially equivalent position in the immediate area of the
Linwood, New Jersey facility, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Anne DeFeo whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge of and failure to rehire Anne DeFeo and WE
WILL, within 3 days thereafter, notify her in writing that
this has been done and that these actions will not be used
against her in any way.
LABORATORY CORPORATION OF
AMERICA HOLDINGS

Mark E. Arbesfeld and Allyson C. Hall, Esqs., for the General
Counsel.
John G. Creech and Erin E. Swann, Esqs., of Greenville, South
Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Philadelphia, Pennsylvania, on February
9 and 10, 1998, upon the General Counsel’s complaint which
alleged that the Respondent terminated employee Anne DeFeo
in violation of Section 8(a)(3) of the National Labor Relations
Act. Certain violations of Section 8(a)(1) were also alleged.
The Respondent generally denied that it committed any viola-
tions of the Act, and contends that paragraphs 5 and 6(c) should
be dismissed as being unrelated to the allegations in any charge.
On the record as a whole,1 including my observation of the
witnesses, briefs and arguments of counsel, I hereby make the
following findings of fact, conclusions of law, and recom-
mended Order.
I. JURISDICTION
The Respondent is a Delaware corporation, engaged in the
business of operating clinical laboratory testing facilities
throughout the United States, including those involved here at
Linwood and Pleasantville, New Jersey. In the course and
conduct of this business, the Respondent annually derives gross
revenues in excess of $500,000 and purchases goods valued in
excess of $50,000 directly from points outside the state of New
Jersey. The Respondent admits and I find that it is an employer
engaged in interstate commerce within the meaning of Section
2(2), 2(6), and 2(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, AFL–CIO, Local
339 (the Union) is admitted to be, and I find is, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent was created in 1995 with the merger of two
corporations engaged in clinical diagnostic laboratory services.
It operates patient service centers (sometimes referred to a
“ports”) throughout the United States and has about 18,000
employees. Material to this case is the Respondent’s Pleasant-
ville, New Jersey region, which has 12 ports and is part of the
Northeast Division (New Jersey, New York, Eastern Pennsyl-
vania, and all the New England states).
Anne DeFeo worked for the Respondent (or a predecessor)
from 1992 until July 1997 as a phlebotomist or a data-entry
clerk. She was first assigned to the Pleasantville port, but over
time was assigned to five different ports in the Pleasantville
region, including her last assignment at Linwood, New Jersey,
where she had been previously assigned.
In February 1997, the Union began an organizational cam-
paign among the Respondent’s employees in the Pleasantville
Region. DeFeo was active in the campaign, and just before a
scheduled meeting of all Pleasantville employees with various
members of management, she obtained the signatures of em-
ployees on a petition seeking union representation which she
attempted to hand to Robert Elder, senior vice president, human
resources. Elder refused to take the petition and told DeFeo
that she “could get in a lot of trouble.” As Elder started the
meeting, DeFeo stood and stated she was from the Union and
had a petition seeking recognition. Elder told her to sit down.
During the months preceding the election, management offi-
cials held additional group meetings and also met individually
with employees. Thus on March 31, Harry Bush (operations
manager in Pleasantville) and Richard Novak (executive vice
president, Eastern operations) came to the Linwood port to talk

1 Counsel for the General Counsel moved to make certain correc-
tions to the transcript, which changes appear warranted. The motion is
granted and the list of corrections is added to the record as GC Exh. 44.
LABORATORY CORP. OF AMERICA HOLDINGS 287
with DeFeo. Bush introduced her to Novak. She said she felt
intimidated and would “like to be represented, have another one
of my co-workers with me.” This request was refused. She
was told that the meeting was just “to find out why I was un-
happy and everybody else and see if he (Novak) couldn’t help
change things.”
DeFeo said she would like to have a longer lunchbreak. No-
vak replied that would not be a problem. And she also said that
the long distance freeze on the telephone was inconvenient.
And they talked a bit about raises. At the end of the meeting,
Novak gave her a card with his home phone number, as well as
the Respondent’s 800 number and Novak’s extension, and he
told DeFeo “I could call him at any time, day or night, with any
problem and he would fix it.”
After this, she was allowed to combine her two 15-minute
breaks with the normal one-half hour for lunch and thus take an
hour lunchbreak. This was subsequently reduced to 50 minutes
by Bush.
In early April, DeFeo received a 49-cent raise from $10.49
per hour to $10.98. This was announced by Bush and Mary
Shinick, director of human resources, Northeast division. De-
Feo was told that the raise was to be effective on her anniver-
sary date of April 3 and was to “to bring me up to standard.”
Another mandatory meeting of employees was held by No-
vak on April 22 (3 days prior to the scheduled representation
election) at which Novak told them “that he was new in the
company, that he had heard all our complaints and he was
really sorry that we were so unhappy and that he was going to
change everything he could to make us unhappy.” He asked
the employees for another chance and that “he would take care
of all our problems.”
After the meeting DeFeo and another employee approached
Novak with a complaint about Bush having made two perma-
nent weekend position whereas before the work was done on a
volunteer basis, which allowed employees to work some over-
time. Novak told Bush to reinstate the volunteer system.
The election was held on April 25. A substantial majority of
the employees voted against representation by the Union.
Then on June 20, DeFeo was visited by Bush and Dave Rosi
(operations manager for Marlton, New Jersey) and was told that
the Respondent had decided to close the Linwood port and she
would be laid off. When DeFeo asked why she would not be
reassigned to another port, Bush said that she was “attached” to
the Linwood port. At the time the Respondent had job open-
ings in the Pleasantville branch for which DeFeo was admit-
tedly qualified, as well as numerous jobs out of other branches
in the Northeast.
B. Analysis and Concluding Findings
1. The 8(a)(1) allegations
a. Threat by Robert Elder
It is alleged, and denied, that on March 13 (amended to
March 18), Robert Elder, senior vice president of human re-
sources, threatened an employee with unspecified reprisals.
This is alleged to have taken place just before a meeting of
employees when DeFeo attempted to give Elder a petition to
the effect that the employees wanted representation by the Un-
ion. DeFeo testified that Elder declined to take the petition,
saying to do so would be “inappropriate” and, according to
DeFeo, “he told me that if I did this, I could get into a lot of
trouble.”
Elder admitted that DeFeo attempted to give him “a docu-
ment” and that he refused saying, “I don’t think that’s appropri-
ate. I will not accept it.” Elder specifically denied that he said
“to her that you can get into a lot of trouble. That’s not the
proper thing to do.” Elder further testified that he did not know
what the document was, that identifying it “would be specula-
tive on my part.”
I do not believe the import of Elder’s testimony. While his
answers may be literally true, I discredit his suggestion that he
had no idea that DeFeo was attempting to hand him a petition
for union representation. Indeed, the meeting was in response
to the organizational campaign. I further discredit Elder’s tes-
timony that he did not tell DeFeo she “could get into a lot of
trouble.”
I found DeFeo a generally credible witness. Further, her tes-
timony about this event is consistent with her testimony about
subsequent matters, and Elder’s threat fits the Respondent’s
pattern of actions which cumulated in DeFeo’s discharge. I
therefore conclude that on March 18 the Respondent did
threaten an employee with unspecified reprisals for engaging in
union activity in violation of Section 8(a)(1) of the Act.
The Respondent argues that this allegation is unrelated to
any allegation in the charge or its amendments and therefore
should be dismissed. Although the charge dealt with only the
discharge of DeFeo, the second amended charge alleges other
acts designed to discourage employees from supporting the
Union. Since the threat by Elder is within the context of the
Respondent’s overall campaign against the Union, I conclude
that it is closely related to the allegations in the charge as
amended. Well-Bred Loaf 303 NLRB 1016 fn. 1 (1991), and
cases cited therein.
b. Solicitation, promise, and grant of benefits by Rick Novak
When Novak and Bush visited DeFeo at the Linwood facility
on March 31 it is alleged that Novak (1) solicited complaints
and grievances and promised to increase benefits if employees
would refrain from supporting the Union; (2) promised an em-
ployee everything would be better in order to discourage union
activity; and (3) granted the benefit of allowing an employee to
close the Linwood center at lunchtime in order to discourage
support for the Union.
At the time Novak and Bush visited DeFeo at the Linwood
facility, Novak had been on the job only a few weeks. He was
traveling around with Bush and, as he typically did, stopped in
to visit the patient service centers. His version of this meeting
generally coincides with that of DeFeo. DeFeo testified that
Novak asked what he could do to make employees happy, what
changes he could make. She suggested that she would like a
longer lunch hour in lieu of the one-half hour and breaks in the
morning and afternoon, and she said that long distance calls
were blocked which prevented her from communicating neces-
sary information to doctors outside the local area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288
Novak agreed that DeFeo could close the facility and take a
1-hour lunchbreak (subsequently cut to 50 minutes by Bush)
and that they would look into the long distance block.
Although I conclude that this meeting occurred in substance
as testified to by DeFeo, I also conclude that Novak did not
solicit grievances or make promises of benefits in order to dis-
courage union activity. This meeting was a benign and typical
visit by a new high-level manager, which activity the Respon-
dent was not required cease just because the employees were
attempting to organize. The alleged solicitation and promise of
benefits was simply too ambiguous to constitute a violation of
the Act.
However, by granting the benefit of an increased lunchbreak,
occurring during the course of the campaign, was necessarily
violative of Section 8(a)(1). Airstream, Inc., 304 NLRB 151
(1991). I further conclude, that this allegation (par. 6(c) of the
complaint) is closely related to the allegations in the amended
charge.
c. Granting wage increases to Pleasantville employees
During late March, or early April, DeFeo, as well as other
employees, received wage increases which they were told was
to bring their wages up to “standard.” In DeFeo’s case this
amounted to 49 cents per hour. While a wage increase during
an organizational campaign is certainly suspect, such is not
presumptively unlawful. Holly Farms Corp., 311 NLRB 273
(1993). From the credited testimony of Mary Shinick, the di-
rector of human resources for the Northeast division, I conclude
that the increase was in the planning stages well before any
union activity and was occasioned by the fact that after the
merger of two companies into the Respondent, there were wage
discrepancies among employees doing the same job. Given the
large number of employees of the Respondent, the wage ad-
justments were to be phased in over a 2-year period beginning
in 1995. The increase DeFeo received would have been given
when it was in the absence of any union activity.
Accordingly, I conclude that the Respondent did not violate
Section 8(a)(1) as alleged in paragraph 7 of the complaint.
d. Soliciting grievances, promises, and grants of benefits
In paragraph 8 it is alleged that at a meeting of employees on
April 22, a few days before the election, Novak solicited em-
ployee complaints and grievances, and promised them benefits
and improved terms and conditions of employment. At the
hearing this paragraph was amended to include an allegation
that a benefit was granted in that the Respondent did not im-
plement an announced change of after hours work being done
by volunteers. This allegation is based on the following testi-
mony of DeFeo:

Mr. Novak again said that he was new in the company, that he
had heard all our complaints and he was really sorry that we
were so unhappy and that he was going to change everything
he could to make us unhappy. [Transcript error.]

He also had an overhead projector in the room with the union
card up on the wall. It had a yes and a no, you know, in the
little boxes. And the no was, of course, crossed out. And he
kept referring to that saying this is not the way you want to go,
to, you know, give us another chance.

And he ended it, he kept saying that he wanted us to be one
big happy family and that he would take care of all our prob-
lems. And he ended it with, if we didn’t like what was hap-
pening, we had to wait just another year and the Union could
come back.

I find nothing in DeFeo’s testimony amounting to solicita-
tion of grievances, with and offer to remedy them, or the prom-
ise of benefits. At most, Novak sought to have employees vote
against representation in the scheduled election by making a
generalized appeal that if they did so, life would be better. In
order to violate the Act in the manner alleged, an employer’s
solicitations and promises must be more specific. To find a
violation on this testimony would be tantamount to concluding
that an employer may not campaign against union representa-
tion.
Following Novak’s speech, DeFeo and another employee
approached him with a complaint that Bush was again going to
change the way evening and weekend on-calls were handled,
by creating two full-time positions rather than have the work be
done by the regular employees on a volunteer basis. Novak
asked Bush why the change and Bush replied that he had been
so instructed by corporate, but as he could supply no name to
Novak’s satisfaction, Novak told him to leave the system as it
was. By doing so the Respondent is alleged to have granted a
benefit in violation of Section 8(a)(1).
Since nothing changed, it is difficult to conclude that a bene-
fit was granted to employees in order to encourage their vote
against the Union. I therefore, conclude that paragraph 8 be
dismissed.
2. The discharge of Anne DeFeo
In paragraph 9 of the complaint it is alleged that (a) the Re-
spondent closed the Linwood facility and laid off DeFeo and
(b) refused to rehire or recall her because of her activity on
behalf of the Union.
The Respondent admits that DeFeo was informed on June 23
that the Linwood patient service center would close on July 3
and that her position would be eliminated. The Respondent
contends this was a legitimate business decision having nothing
to do with the union activity or DeFeo’s participation therein.
Secondly, the Respondent contends that its refusal to rehire her
was based on its inviolate rules concerning applications for
employment—that DeFeo had not filed out the proper form
properly.
While the Respondent seems to deny that DeFeo was termi-
nated, there can be little doubt that she was. When Bush and
Rosi met with DeFeo on June 23 and told her that Linwood
center would be closed, DeFeo asked where she would be going
and Bush said that she was “attached” to the port and therefore,
she would be given severance.
a. Closure of the Linwood facility
I conclude that the basic purpose to be served by closing the
Linwood facility was the termination of DeFeo, the leading
activist on behalf of the Union. According to Maria Graczyk, a
former supervisor, early in the campaign Bush said he had
learned that there would be a meeting of employees concerning
the Union at DeFeo’s house. Graczyk further testified that
LABORATORY CORP. OF AMERICA HOLDINGS 289
Bush held many meetings of supervisors to discuss the progress
of the union campaign and Bush “said on several occasions that
he would get rid of” DeFeo. She testified that Rosi also said
that “they’ll get rid of her.” I found Graczyk credible and had
no apparent stake in the outcome of this matter. Neither Bush
nor Rosi denied the statements attributed to them. I therefore
conclude that management officials of the Respondent were
predisposed to terminate DeFeo because of her union activity.
While there might be some economic justification for closing
the Linwood facility, inasmuch as the Respondent had several
one- or two-person patient service centers in the area, I con-
clude that Bush recommended Linwood specifically in order to
terminate DeFeo.
DeFeo was a competent employee of 5 years. Had the clo-
sure of Linwood been solely for legitimate business reasons,
more probably than not she would have been offered a position
elsewhere. The Respondent had openings for on-call phle-
botomists and data entry specimen processors at the Pleasant-
ville facility, and had, for instance, 30 openings for phleboto-
mists in the Northeast. Of course DeFeo might not have
wanted to transfer to another area, or take the on-call job, but
she was not offered the chance. When she asked where she
would be transferred to, Bush told her that she was “attached”
to the Linwood facility and with its closure, she would be ter-
minated.
The Respondent offered no evidence to support Bush’s
assertion that employees are “attached” to a particular port such
that in the event of the port’s closure they are terminated. To
the contrary, DeFeo testified, without contradiction, that in her
5 years she was involuntarily transferred five times.
Bush’s statement to DeFeo was a total fabrication. There is
absolutely no objective evidence that employees are “attached”
to a particular port such that they cannot be reassigned absent
filing an internal application. To the contrary, DeFeo was reas-
signed five times, as have been others. DeFeo was an experi-
enced and competent employee. At the time the Linwood of-
fice was closed, there were jobs available out of Pleasantville
and other branches in the Northeast. In the normal course of
events, I conclude, had the closure been legitimate, the Re-
spondent would have offered DeFeo transfer to an open posi-
tion. Failure to do so indicates that the closure of Linwood was
in retaliation for DeFeo’s union activity. This conclusion is
supported by the Respondent’s sophistic argument that she
could not be rehired because she failed to fill out the proper
form in the proper manner.
I discredit Bush, and conclude that the story he told DeFeo
upon her termination, which he repeated at the hearing, was a
material misrepresentation of company policy. I conclude he
deliberately sought to terminate her because of her active role
on behalf of the Union.
The Respondent argues that Linwood was picked for closure
because it had a low patient count and by closing Linwood it
was able to renegotiate the lease, which was due to run until
April 1999, and therefore save several thousand dollars. I re-
ject this argument. First, the patient count was not shown to be
substantially lower than others given the number of employees
servicing the patients. Second, the Respondent’s action belies a
serious intent to save money.
In May the lessor, Richard Steinberg, told Bush that a doctor
in the office adjacent to the Linwood service center wanted to
expand and Steinberg wanted to know whether the Respondent
would be interested in relocating. On May 13 Steinberg wrote
Bush to this effect.2 The Respondent argues that based on this,
the decision was made to close the Linwood facility and rene-
gotiate the lease.
I conclude this is an after-the-fact argument, and did not play
a part in the decision to close the Linwood facility. Steinberg’s
letter of May 13 went unanswered. He wrote again on August
20, noting that the Linwood office had been vacated and again
on October 20. It was not until December that the Respon-
dent’s lease administrator got around to renegotiating with
Steinberg. In short, the Respondent closed Linwood for pur-
ported economic reasons, yet paid full rent for 6 months. Such
are not the actions of a business seeking to minimize expenses
and I conclude that the argument that Linwood was closed for
legitimate business reasons is bogus.
The office on Northfield-Zion Road was closed at about the
same time; however, that office had fewer patients than Lin-
wood and the lease for Zion Road was due to expire in July.
On the other hand, Somers Point was not closed, though it had
less than one half the number of patients of Linwood. Though
the Respondent’s “duplication” argument has some logical
appeal, it is clear from these facts that such was not the
motivating reason for closing Linwood.

b. Failure to rehire DeFeo
Though alleged as a separate violation of the Act, the Re-
spondent’s failure to rehire DeFeo is intertwined with the deci-
sion to close Linwood and terminate her. Nevertheless, if it
could be found that the closure of Linwood was lawful, the
Respondent’s refusal to offer her another job was clearly viola-
tive of Section 8(a)(3). DeFeo was known to be the leader of
the union movement and Bush, at least, stated that he “would
get rid of her.”
Much of the record, and the Respondent’s defense, is de-
voted to the legalistic argument that DeFeo did not file out the
right kind of application nor did she put the job title and num-
ber on the application she did file. True enough her application
was technically deficient, and she should have filed an internal
application rather than one for nonemployees, had she been
seeking a voluntary transfer. It may even be, as the Respondent
argues, that these rules are mandated by an agreement with the
Office of Federal Contract Compliance and Programs. How-
ever, the rules relied on by the Respondent, contained in “Job
Posting Procedures” do not state any kind of a procedure to be
used in transferring employees in the event a port is closed.
Indeed, Graczyk testified without contradiction that facilities
were closed and phlebotomists were moved to other facilities.
Further, had the Respondent not been disposed to terminate
DeFeo, certainly she would have been given some initial aid in
obtaining another job. And undisputedly, the Respondent had
jobs available for which DeFeo was qualified. The subsequent
2 The doctor had in fact approached Steinberg in late 1996 and
Steinberg had written to the Respondent, which was addressed to De-
Feo at the Linwood address. Bush told Steinberg he did not receive this
communication. What happened to it was not pursued.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290
responses to her inquires by Novak cannot be characterized as
any kind of an effort to help her obtain employment. If the
closing of Linwood and the layoff of DeFeo had in fact been
for purely business reasons, I believe she would have been
offered another job and would have been instructed in how to
file the appropriate application, if in fact such was needed. I
simply do not accept the Respondent’s statements and argu-
ment to the contrary. I reject the motive offered by the Re-
spondent, and I infer the unlawful motive which it sought to
hide by this argument. Sattuck Denn Mining Corp., 362 F.2d
466 (9th Cir. 1966).
REMEDY
Having concluded that the Respondent committed certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act, including reinstating Anne DeFeo
her former job, or if that job no longer exists, to a substantially
identical position of employment and make her whole for any
loss of wages or other benefits she may have suffered in accor-
dance with the formula set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987). Inasmuch as DeFeo was the only em-
ployee at the Linwood facility, I shall not recommend that the
Respondent be ordered to reopen it. The purposes of the Act
will be fully remedied by ordering the Respondent to reinstate
her to an equivalent job in the immediate area of the Linwood
facility.
[Recommended Order omitted from publication.]