Holyoke Visiting Nurses Ass'n v. N.L.R.B.

• Decision Date: 05 October 1993
• Docket Number: No. 93-1507,93-1507
• Citation: 11 F.3d 302
• Parties: 145 L.R.R.M. (BNA) 2017, 127 Lab.Cas. P 10,953 HOLYOKE VISITING NURSES ASSOCIATION and O'Connell Professional Nurse Service, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 302

11 F.3d 302

145 L.R.R.M. (BNA) 2017, 127 Lab.Cas. P 10,953

HOLYOKE VISITING NURSES ASSOCIATION and O'Connell

Professional Nurse Service, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 93-1507.

United States Court of Appeals, First Circuit.

Heard Oct. 5, 1993.

Decided Dec. 17, 1993.

Albert R. Mason, Chicopee, MA, for petitioners.

John D. Burgoyne, Asst. Gen. Counsel, N.L.R.B., with whom Jerry M. Hunter, Gen. Counsel, Yvonne T. Dixon, Acting Deputy Gen. Counsel, Nicholas E. Karatinos, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, DC, were on brief, for respondent.

Before TORRUELLA, Circuit Judge, ROSENN, ^* Senior Circuit Judge and STAHL, Circuit Judge.

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. Sec. 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 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 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 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 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 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 Pecuarias de Puerto Rico, 929 F.2d 814, 819-20 (1st Cir.1991); see also NLRB v. Browning-Ferris Industries, Inc., 691 F.2d 1117, 1124 (3d Cir.1982). Whether an employer possesses sufficient indicia of control to be an employer is essentially a factual issue. Rivas, 929 F.2d at 819-20 (citing Boire v. Greyhound Corp., 376 U.S. 473, 480-81, 84 S.Ct. 894, 898-99, 11 L.Ed.2d 849 (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; pay, insurance and records; supervision; and participation in collective bargaining process), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (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...