UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1507
HOLYOKE VISITING NURSES ASSOCIATION AND O'CONNELL PROFESSIONAL NURSE SERVICE,
Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before
Torruella, Circuit Judge,
Rosenn,* Senior Circuit Judge
and Stahl, Circuit Judge.
Albert R. Mason for petitioners.
John D. Burgoyne, Assistant General Counsel, National Labor
Relations Board, with whom Jerry M. Hunter, General Counsel, Yvonne T.
Dixon, Acting Deputy General Counsel, Nicholas E. Karatinos, Acting
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, National Labor Relations Board, were on brief for respondent.
December 17, 1993
*Of the Third Circuit, sitting by designation.
ROSENN, Senior Circuit Judge. Holyoke Visiting
Nurses Association (Holyoke) and O'Connell Professional
Nurse Service, Inc. (O'Connell, Inc.) (collectively, the
Petitioners) seek review of an order of the National Labor
Relations Board (the Board) which required them to cease and
desist from unfair labor practices and from infringing upon
their employees' Section 7 rights under the National Labor
Relations Act as amended (the Act), 29 U.S.C. 151 et seq.,
to make employee Eileen Bourque whole for any loss of
earnings suffered by her, and to post an appropriate
notice.1 The Board cross-applies for enforcement of its
order against the Petitioners. We deny the Petitioners'
petition for review, and we grant the Board's cross-
application for enforcement against the Petitioners.
I.
Holyoke, a private, non-profit organization,
provides nursing services, home health aide, homemaker, and
hospice care to people in their own homes. Holyoke's
employees are represented for purposes of collective
bargaining by Service Employees International Union, Local
1The Board had jurisdiction over this matter under section 10(a) of the Act, 29 U.S.C. 160(a), and we have jurisdiction over this appeal pursuant to 29 U.S.C. 160(e).
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285 (the "Union"). Holyoke's activities are directed by its
Director of Hospice, Patricia Cavanaugh.
O'Connell, Inc. is a referral agency that supplies
nurses and licensed practical nurses to hospitals and other
institutions on a per diem or hourly rate basis. The
activities of O'Connell, Inc. are directed by its president
and sole stockholder, Francis O'Connell. O'Connell, Inc.
hires the nurses and licensed practical nurses, carries
insurance on them, sets their wage rates, and pays them for
their work, making appropriate deductions for taxes.
O'Connell, Inc.'s employees are not represented by a union
and do not participate in any collective bargaining.
The Petitioners have a written contract under which
O'Connell, Inc. makes its nurse employees available to
Holyoke as needed and Holyoke reimburses O'Connell, Inc. for
their services at a specified hourly rate. Typically, the
nurses supplied arrive at Holyoke's office in the morning
where Holyoke supervisors give them a list of patients that
they are to attend, a report on the patients' conditions,
and directions to the patients' homes. Holyoke supplies the
persons referred with a visiting nurse bag containing a
stethoscope and blood pressure cup. The nurses take the
same breaks as Holyoke employees and frequently eat lunch
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with them. If a problem arises during the day, the referred
employees contact their Holyoke supervisor. After making
their rounds and before leaving for the day, they report to
one of the Holyoke supervisors to discuss the patients and
file written reports which become the property of Holyoke.
Holyoke supervisors make decisions concerning the continued
use of referred nurses based on need and the feedback that
they receive from patients and staff. If a referred nurse
does not meet Holyoke's standards, Holyoke has the authority
to reject that person in the future.
In late 1990 and early 1991, Holyoke and the Union
renegotiated their collective bargaining agreement. One of
the issues was the security maintained by Holyoke in its
parking lot. The area surrounding the parking lot had
become dangerous because of nearby drug dealing and
prostitution, and two Holyoke nurses had been assaulted
there. In January, 1991, Holyoke employees voted to engage
in a practice called "work to rule" in order to support
their contract demands. That is, as a show of solidarity,
they decided to arrive as a group at 8:00 A.M., take their
breaks together, and leave as a group at 4:30 P.M.
On a number of occasions in 1990 and 1991,
O'Connell, Inc. referred Eileen Bourque, a registered nurse
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employed by it, to Holyoke. Initially, Bourque frequently
arrived for work 15 or 20 minutes prior to her 8:00 A.M.
starting time and waited outside until a Holyoke employee
arrived to open the building. After the assaults in the
fall of 1990, however, Bourque stayed in her car until
another person arrived. In January, 1991, Bourque overheard
Holyoke employees talking about their intention to arrive
for work as a group at 8:00 A.M. Because of her safety
fears, Bourque ceased coming to work early and instead
arrived for work at 8:00 a.m. to enter the building with the
Holyoke nurses. One day, Holyoke Director Cavanaugh watched
the staff enter the building and saw Bourque walk in with
the group. Suspecting that Bourque was joining forces with
the Holyoke nurses in their union activities, Cavanaugh
telephoned O'Connell and complained about Bourque.
Shortly thereafter, Bourque became sick and was
unable to work from January 17 to February 5, 1991. Upon
her return, she was told to meet with O'Connell. At the
meeting, O'Connell informed Bourque that she had been
observed walking into the Holyoke office with the nurses who
were in a "work to rule" protest, that Cavanaugh believed
that such action was a demonstration of Bourque's allegiance
for the Union, and that Cavanaugh had requested that she not
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be reassigned to Holyoke. Bourque explained to O'Connell
that she entered the building with the Holyoke nurses for
safety and security reasons, and that she had not taken part
in any union activity. O'Connell replied that he would
relate Bourque's explanation to Cavanaugh, but advised
Bourque that Holyoke was his bread and butter and if
Cavanaugh wanted to stand by her decision, she did not have
to give him any reason for rejecting a referred employee.
O'Connell further cautioned Bourque that she should remain
neutral and uninvolved with the Holyoke employees. A week
later, O'Connell informed Bourque that Cavanaugh understood
the safety issue, and that everything was back to normal.
Bourque was again referred to Holyoke on February 19, 1991.
Subsequently, Bourque filed a charge with the Board
and the Board's General Counsel issued a complaint. At a
hearing before an administrative law judge (ALJ), he
rendered a decision and recommended order holding that the
Petitioners were joint employers under the Act. The ALJ
also held that the Petitioners violated sections 8(a)(1) and
(3) of the Act by threatening and denying employment to
Bourque because of their mistaken belief that she had
assisted Holyoke's employees in their protected and union
activities. The Board adopted the recommendations of the
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ALJ and ordered the Petitioners to cease and desist from the
unfair labor practices found and from infringing upon their
employees' Section 7 rights.2 The Board also required the
Petitioners to make Bourque whole for any loss of earnings
suffered by her and to post an appropriate notice.
II.
The Petitioners essentially raise two issues on
appeal. First, they contend that the Board erred in holding
that they are joint employers of the employees referred by
O'Connell, Inc. to Holyoke. Second, the Petitioners argue
that the Board erred in ruling that they violated sections
8(a)(1) and (3) of the Act by threatening and denying
employment to Bourque.
A. Joint Employers
A joint employer relationship exists where two or
more employers exert significant control over the same
employees and share or co-determine those matters governing
essential terms and conditions of employment. Rivas v.
Federacion de Asociaciones Pecuaria de Puerto Rico, 929 F.2d
814, 819-20 (1st Cir. 1991); see also NLRB v. Browning-
2The Board modified the ALJ's recommended Order to provide that the statements made by O'Connell to Bourque concerning her involvement with the Union violated section 8(a)(1) of the Act.
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Ferris Industries, Inc., 691 F.2d 1117, 1124 (3d Cir. 1982).
Whether an employer possesses sufficient indicia of control
to be a employer is essentially a factual issue. Rivas, 929
F.2d at 819-20 (citing Boire v. Greyhound Corp., 376 U.S.
473, 480-81 (1964)). Thus, the Board's finding of joint
employer status is entitled to acceptance by this court if
it is supported by substantial evidence on the record as a
whole. See NLRB v. Horizon Air Servs., Inc., 761 F.2d 22,
25 (1st Cir. 1985).
This court has not set forth a specific test to use
in evaluating whether a joint relationship exists. In
Rivas, the court acknowledged that other courts have
emphasized a number of relevant considerations. Rivas, 929
F.2d at 820-21. See e.g., W.W. Grainger, Inc. v. NLRB, 860
F.2d 244, 247 (7th Cir. 1988) (joint employment can be found
from "such factors as the supervision of the employees' day-
to-day activities, authority to hire or fire employees,
promulgation of work rules and conditions of employment,
work assignments, and issuance of operating instructions"
and the right to refuse a referred employee); Clinton's
Ditch Cooperative Co. v. NLRB, 778 F.2d 132, 138-39 (2d Cir.
1985) (determination of joint employer status can be found
from employer's power over hiring and firing; discipline;
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pay, insurance and records; supervision; and participation
in collective bargaining process), cert. denied, 479 U.S.
814 (1986); Ref-Chem Co. v. NLRB, 418 F.2d 127, 129 (5th
Cir. 1969) (joint employers found from evidence that company
had right to approve employees, control number of employees,
remove an employee, inspect and approve work, and pass on
changes in pay and overtime allowed).
The Board's finding that Holyoke possessed
sufficient control over the O'Connell, Inc. employees to be
deemed a joint employer is supported by substantial
evidence. First, Holyoke had the right to refuse to accept
any employee that it did not want. The record shows that
Holyoke monitored the performance of the referred employees
and if an employee did not meet its standards, Holyoke could
and did require that O'Connell, Inc. refrain from referring
the employee again. The record further shows that O'Connell
completely deferred to Holyoke's demands concerning which
referrals would be accepted by Holyoke. In fact, Holyoke
exercised its power in this case to refuse Bourque as a
referral. Second, the record reveals that Holyoke assumed
supervision over the referred employees. The referred
employees reported to Holyoke's office where they were given
certain supplies, the day's work assignment, a report on the
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patients' conditions, and directions to the patients' homes.
If referred employees encountered a problem during the day,
they were instructed to contact a Holyoke supervisor for
advice. At the end of the day, the referred employees
returned to the Holyoke office and made a written report to
Holyoke of their activities. Moreover, the Petitioners
acknowledge that in the eyes of their patients, the referred
nurses were regarded as Holyoke employees.
The Petitioners argue that with professional
personnel, by definition, there may be direction as to where
to go, but no control or supervision as to "how" to do the
assignment involved. They liken this case to the
professional drivers discussed by the Board in Laerco
Transportation & Warehouse, 269 NLRB 324 (1984), in which
the Board found that Laerco's supervision over the referred
employees was too routine to make Laerco a joint employer.
As discussed above, however, the supervision exercised by
Holyoke over the O'Connell, Inc. referrals was more than
routine. That the referred employees were professional
nurses who may not have required much instruction as to how
to perform their work does not negate the power of
supervision and direction that Holyoke exercised over them
once they reported for work.
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More important than the factual distinctions between
cases are the specific facts of this particular case. In
Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985),
the Sixth Circuit Court of Appeals rejected an argument
identical to the one made here by Holyoke. The court found
that the same cases cited by Holyoke3 were not dispositive
for two reasons.
First, because the joint employer issue is simply a factual determination, a slight difference between two cases might tilt a case toward a finding of a joint employment. . . . Second, the only question before this Court is whether in this particular case there is substantial evidence to support the Board's finding that [the petitioner] was a joint employer. As we have discussed in the text, we believe there was ample evidence to support such a finding. Whether there could have been substantial evidence to support a finding of joint employment in the above- cited Board decisions is not an issue before the Court.
Id. at 781-82 n.1. Accord NLRB v. Western Temporary Servs.,
Inc., 821 F.2d 1258, 1267 n.8 (7th Cir. 1987).
In this case, the ALJ's finding that the Petitioners
are joint employers, which was adopted by the Board, is
supported by substantial evidence. Holyoke demonstrated its
3TLI Inc., 271 NLRB 798 (1984), enforced without op General
Teamsters Local Union No. 326, etc. v NLRB, 772 F.2d 894
(3d. Cir. 1985); H&W Motor Express, Inc., 271 NLRB 466
(1984); Laerco, 269 NLRB 324.
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joint control of the referred employees by, inter alia, its
unfettered power to reject any person referred to it by
O'Connell, Inc., and its substantial control over the day-
to-day activities of the referred employees. Thus, we see
no error in the Board's finding that the Petitioners are
joint employers of the employees referred by O'Connell, Inc.
to work for Holyoke.
B. Violation of the Act
The Petitioners next contend that the Board erred in
finding that they violated sections 8(a)(1) and (3) of the
Act by threatening and denying employment to Bourque.
Employers violate sections 8(a)(1) and (3) of the Act by
threatening reprisals or discriminating against employees
because they engage in union or other activities protected
by the Act or are suspected of doing so. See NLRB v Horizon
Air Servs., Inc. 761 F.2d at 26 n.2; NLRB v. American Spring
Bed Mfg. Co., 670 F.2d 1236, 1241-42 (1st Cir. 1982). Thus,
proof of an unfair labor practice does not require proof of
actual union activity; it is sufficient if the employer was
motivated by suspected union activity in discharging the
employee. See e.g., McLane/Western, Inc. v. NLRB, 827 F.2d
1423, 1425 (10th Cir. 1987).
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In this case, the Holyoke employees adopted the
tactic of arriving for work together to support their
position in ongoing contract negotiations. Bourque joined
the group for safety reasons, not to support the Holyoke
employees. Cavanaugh observed Bourque with the Holyoke
employees and telephoned O'Connell to complain about
Bourque's support for the Union. O'Connell informed Bourque
of Cavanaugh's request that Bourque not return to Holyoke.
When Bourque explained that she had joined the group for
safety reasons, O'Connell replied that he would try to
explain that to Cavanaugh, but that Cavanaugh did not have
to give any reason for her request that Bourque not be
reassigned. O'Connell advised Bourque that she should
remain neutral and uninvolved with the Holyoke employees.
O'Connell subsequently resolved matters with Cavanaugh and
again referred Bourque to Holyoke.
At the hearing, both of the Petitioners denied that
Cavanaugh had asked O'Connell to stop referring Bourque to
Holyoke. The ALJ, however, found that "Bourque's testimony
was candid and straightforward, and [his] observations of
her demeanor convince[d him] that she was telling the truth
in her descriptions of her conversations with O'Connell."
The Board accepted the ALJ's credibility determinations.
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The ALJ's credibility determinations are entitled to
great weight since he saw and heard the witnesses testify.
Rikal, Inc. v. NLRB, 721 F.2d 402, 406 (1st Cir. 1983). As
stated by this court in American Spring Bed, supra,
The credibility of witnesses is for the ALJ to determine, and the reviewing court will set aside such findings only when he oversteps the bounds of reason. So long as the ALJ's position represents a choice between two fairly conflicting views, it should be enforced even if this court would justifiably have made a different choice had the matter come before it de novo.
670 F.2d at 1242 (citations omitted).
The Petitioners offer no proof that the ALJ's
credibility findings are unreasonable. Thus, we accept the
ALJ's findings that Holyoke requested O'Connell, Inc. not to
refer Bourque because of Holyoke's erroneous belief that
Bourque was assisting the unionized employees in their
protected demonstration; that O'Connell, Inc. willingly
complied with Holyoke's illegal request; and that O'Connell
specifically cautioned Bourque not to involve herself with
the demonstrating Holyoke employees. Once the ALJ's
credibility findings are accepted, there is more than
sufficient evidence to support the Board's ruling that the
Petitioners both violated sections 8(a)(1) and (3) of the
Act.
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The final determination set forth by the ALJ and
upheld by the Board relative to the unfair labor practices
is as follows:
The facts noted above, show that Bourque would have worked at least some of the days that [Holyoke] used referrals from O'Connell in the period between February 5, 1991, when Bourque was released by her doctor, and February 19, 1991 when she was actually assigned to [Holyoke]. The question of just how many days must wait until the compliance stage of this proceeding.
The Petitioners submit that the above conclusion is
speculative and they set forth testimony that, they argue,
shows that Bourque did not miss any days of work for Holyoke
due to their actions.
To the contrary, the evidence creates an issue as to
how many days, if any, Bourque would have been referred to
Holyoke during the period that the Petitioners prevented her
referral. Bourque testified that her schedule for working
at Holyoke was arranged as far as three months ahead of
time, or as short as the morning of work. In the past, she
had been called the day before and even at 9:00 in the
morning of the day she was to work. Therefore, the Board
did not err in finding that Bourque may be entitled to
backpay and that the amount of backpay owing to Bourque
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could be resolved, if necessary, in the compliance
proceeding following enforcement of the Board's order.
This court has approved the same kind of order and
procedure in a similar situation. In NLRB v. Globe Mfg.
Co., 580 F.2d 18, 21-22 (1st Cir. 1978), where an employer
had imposed a discriminatory recall policy on an employee,
this court upheld a Board order leaving to compliance
proceedings the resolution of whether the employee in fact
would have been recalled in the absence of the illegal
policy. The court noted that it could not rule on the
company's claim that the employee was unemployable under the
company's standards, and it refused to prolong the case by
declining enforcement and remanding the case. Id. at 22.
Rather, the court held that the Board's order would be
enforced and the company would be entitled to present its
proofs and seek to disprove both damages and a duty to
reinstate. Id. See also NLRB v. Plumbers & Pipefitters
Local Union No. 403, etc., 710 F.2d 1418, 1420-21 (9th Cir.
1983) (upholding Board order delaying until compliance
proceedings determination of entitlement to, and amount of,
back-pay awards for all possible victims of unfair labor
practices engaged in by union); NLRB v. International Assoc.
of Bridge, etc., 600 F.2d 770, 778 (9th Cir. 1979)
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(enforcing Board order calling for back-pay awards even when
identity of all the discriminates was not known), cert.
denied, 445 U.S. 915 (1980).
III.
The record contains substantial evidence to support
the ALJ's findings, adopted by the Board, that the
Petitioners are joint employers of the employees referred by
O'Connell, Inc. to work for Holyoke, and that the
Petitioners committed unfair labor practices under sections
8(a)(1) and (3) of the Act.
Accordingly, the petition for review is denied and
the cross-application for enforcement is granted. Costs
taxed against the Petitioners.
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