
USCA1 Opinion

	




                            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).                                         -2-                                          2             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                                         -3-                                          3             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                                         -4-                                          4             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                                         -5-                                          5             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                                         -6-                                          6             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.                                         -7-                                          7             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;                                         -8-                                          8             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                                         -9-                                          9             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.                                         -10-                                          10                    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.                      ______                                         -11-                                          11             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).                                           -12-                                          12                    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.                                           -13-                                          13                    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.                                         -14-                                          14                    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                                         -15-                                          15             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)             _________________                                         -16-                                          16             (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.                                         -17-                                          17
