               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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                             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

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                             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

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                             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

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                             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

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                             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

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                             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  &amp; 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&amp;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.  

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                             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  &amp; 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.

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                             17
