Holyoke Visiting Nurses Assn.

National Labor Relations Board - Board Decisions

Mar 12, 1993

310 N.L.R.B. 684 (N.L.R.B. 1993)

684
310 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The General Counsel excepts to the judge’s failure to find that
Francis O’Connell’s statements to Eileen Bourque that Holyoke Vis-
iting Nurse Association (HVNA) did not want her referred to it be-
cause she had engaged in union activity and that she should refrain
from engaging in such activity violated Sec. 8(a)(1) of the Act. We
find merit in this exception. The judge credited Bourque’s testimony
that O’Connell told her that HVNA Director Patricia Cavanaugh re-
quested that she not be reassigned to HVNA because of Bourque’s
perceived demonstration of ‘‘allegiance’’ to the Union through sup-
port of the HVNA employees in their union activities and that
Bourque should remain ‘‘neutral and uninvolved’’ with the HVNA
employees. Under these circumstances, we find that these statements
by O’Connell violated Sec. 8(a)(1) of the Act, and we shall accord-
ingly modify the judge’s recommended Order. 1 The two employers here may also be referred to as Respondent.
Holyoke Visiting Nurses Association and O’Connell
Professional Nurse Service, Joint Employers
and Eileen M. Bourque. Case 1–CA–28424
March 12, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 16, 1992, Administrative Law Judge
George F. McInerny issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondents filed cross-exceptions and
a supporting brief.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs, and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Hol-
yoke Visiting Nurses Association and O’Connell Pro-
fessional Nurse Service, joint employers, Holyoke,
Massachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs.
‘‘(a) Telling employees that they will not be referred
because they engaged in protected and/or union activi-
ties and that employees should refrain from engaging
in such activities.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell employees that they will not be
referred because of their protected and/or union activi-
ties and that they should refrain from such activities.
WE WILL NOT fail to refer or fail to accept referrals
of employees because of their protected and/or union
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make Eileen Bourque whole, with interest,
for any loss of earnings suffered by her on account of
the refusal to refer or accept her referral.
HOLYOKE VISITING NURSES ASSOCIA-
TION AND O’CONNELL PROFESSIONAL
NURSE SERVICE
Gerald Wolper, Esq., for the General Counsel.
Albert R. Mason, Esq., of Springfield, Massachusetts, for the
Respondent.
Eileen M. Bourque, of Easthampton, Massachusetts, pro se.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
on a charge filed on July 2, 1991, by Eileen M. Bourque
(Bourque or the Charging Party), which charge was amended
by Bourque on August 6, 1991, the Regional Director for
Region 1 of the National Labor Relations Board (Regional
Director and the Board, respectively) issued a complaint on
August 14, 1991, alleging that Holyoke Visiting Nurses As-
sociation (HVNA) and O’Connell Professional Nurse Serv-
ice, Inc. (O’Connell)1 were joint employers within the mean-
ing of the National Labor Relations Act (the Act); and that,
as joint employers, HVNA and O’Connell had discriminated
against the Charging Party in violation of Section 8(a)(1) and
(3) of the Act. The Respondents filed answers denying the
685HOLYOKE VISITING NURSES ASSN.
2 Checking their personal and professional qualifications.
3 The contract entered in evidence was effective from May 1989
to May 1990, but was renewed on June 4, 1990, for a period of 1
year. The parties agreed that this was the contract which was effec-
tive during all times involved in this case.
4 We are not concerned here with employees other than registered
nurses, or with locations other then HVNA’s offices in Holyoke.
alleged joint employer relationship, and further denying the
commission of any unfair labor practices.
Pursuant to notice contained in the complaint, a hearing
was held before me in Boston, Massachusetts, on May 11,
1992, at which the Respondents were represented by counsel
and had the opportunity to present testimony and documen-
tary evidence, to examine and cross-examine witnesses, and
to argue orally. After the conclusion of the hearing the Gen-
eral Counsel and the Respondents submitted briefs, which
have been carefully considered.
Now, based on the entire record in this case, including my
observation of the witnesses, and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that HVNA is a corporation having
an office and place of business in the city of Holyoke, Mas-
sachusetts, from which location, it provides home care and
nursing services. During the calendar year ending December
31, 1990, HVNA derived gross revenues in excess of
$100,000, and purchased goods valued in excess of $5000
from sources located outside the Commonwealth of Massa-
chusetts.
The complaint further alleges that O’Connell also main-
tains its office and place of business in Holyoke, from which
it operates a referral agency for nurses. Gross revenues for
O’Connell were alleged to be over $100,000 in the year end-
ing December 31, 1990, and purchases from out-of-state ven-
dors amounted to over $5000. In addition, O’Connell was
said to perform services valued at over $50,000 for employ-
ers who themselves are engaged in interstate commerce.
These allegations were initially questioned by the Re-
spondents here, but at the opening of the hearing, they were
admitted, and I find, that the Respondents are employees en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answers admit, and I find that
Local 285, Service Employees International Union, AFL–
CIO (Local 285) is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Joint Employer Issue
Patricia Cavanaugh, director of hospice and former vice
president for clinical services for HVNA testified that HVNA
is a private, nonprofit organization which sends professional
and paraprofessional people into the homes of other people
who are ill, sometimes remaining in the home during an ill-
ness.
O’Connell is a referral agency, supplying primarily reg-
istered nurses (RNs) and licensed practical nurses (LPNs) to
hospitals and other institutions, and agencies which employ
these professional employees. Francis O’Connell, the owner
and chief administrator of O’Connell, testified that he hires
employees2 and refers them to jobs for which he has con-
tracted to supply employees. He stated that his Company
bills his customers a flat amount for the services of these
employees, sometimes adding mileage if the employees have
to use their own cars, and then he pays the employees’ sala-
ries and benefits. O’Connell deducts Federal and state taxes,
and social security payments. He pays for workers’ com-
pensation insurance, malpractice and general liability insur-
ance, and automobile insurance when the employees’ vehi-
cles are used on O’Connell referrals.
A contract between O’Connell and HVNA3 sets out
O’Connell’s obligations to furnish qualified individuals; to
provide copies of professional licenses; to maintain records
of all work done and expenses incurred, to establish general
standards for employees; to pay all wages, expenses, taxes
and insurance for the employees; and to acquaint employees
with HVNA’s procedures and policies, including personnel
qualifications.
There is no dispute over the obligations of O’Connell and
its rights as an employer of registered nurses and licensed
practical nurses. There is, likewise no dispute over the prac-
tice and procedures followed when registered nurses are sent
by O’Connell to work at HVNA.4 When they go to work,
at the same time as employees of HVNA, the nurses sent
over by O’Connell report to one of HVNA’s regular super-
visor staff. They are then assigned a list of patients to be vis-
ited during that day. They receive a bag, or kit, containing
supplies. The O’Connell nurses would discuss with the
HVNA supervisors any data or special considerations re-
quired by each patient to be visited, and pick up supplies as
needed from HVNA, although most often the supplies would
be already available at the patients’ homes. The nurses take
patient charts with them and make notations during and after
visiting patients. If any problems arise, the O’Connell nurses
contact their HVNA supervisor. During the day the
O’Connell employees take the same morning and afternoon
breaks as the regular HVNA nurses, and take the same lunch
hour, frequently at the same place as the HVNA nurses. At
the end of the day the O’Connell nurses report back to the
HVNA offices and report on their day’s assignments includ-
ing unusual problems, whether physicians were called, and
other pertinent patient information.
Francis O’Connell himself testified that he was acutely re-
sponsive to the wishes of Pat Cavanaugh and other HVNA
supervisors regarding the people he sent to work there. He
indicated that this agency was his biggest account, and that
if they did not want a nurse sent over, he would not send
that person to HVNA. The decision would be made by
HVNA.
On these undisputed facts, I find that O’Connell and
HVNA are joint employers of the employees assigned by
O’Connell to work at HVNA. While O’Connell alone hires
the employees it furnishes to HVNA, O’Connell sets the
wages for these employees; pays those wages and other ben-
efits; pays for insurance for those employees, including
workers’ compensation, professional and automobile liability
insurance; withholds Federal and state payroll deductions;
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 All of these monthly figures compare the days Bourque worked
to the total days in that month when any employees were assigned
from O’Connell to HVNA.
6 Bourque left her employment with O’Connell sometime in June
1991.
7 Work-to-rule is a tactic employed mainly in the public sector,
where strikes are not permitted by law. The union members agree
that they will continue to work, but abide, exactly, by the rules.
Hopefully, the tactic will cause consternation on management’s part,
and help to move negotiations forward.
8 They also took breaks and lunch hours, and left for the day, in
the same unified fashion.
9 As an O’Connell nurse Bourque did not have her own key.
10 Bourque worked on January 16, but became ill with what was
diagnosed as pneumonia, and was not able to work until released by
her doctor as of February 5. The incident she was testifying about
must have occurred before January 16.
11 Cavanaugh placed these conversations as taking place at the end
of November or beginning of December, based, I find, on her mem-
ory of when one security guard outfit was replaced by a second,
more reliable, group. However, she did say that she kept a ‘‘list’’
of telephone calls as to which she expects return calls. She did not
and binds itself to compensate HVNA for acts or omissions
of those employees, the record shows that HVNA had the
right to refuse to accept the services of employees it did not
want, and could effectively recommend the removal of such
employees from its premises. Moreover HVNA retained the
right and authority to schedule, assign and direct O’Connell
employees; subject those employees to all of its procedures
and policies while the employees were on HVNA premises
or assignments; and used its own supervisors to direct the
work of the O’Connell employees. It is apparent that both
O’Connell and HVNA exercised sufficient power over the
employees in question to be considered joint employees.
Manpower, Inc., 164 NLRB 287 (1967). See NLRB v.
Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982).
B. The Refusal to Refer Eileen Bourque
Eileen Bourque was employed as a registered nurse by
O’Connell during 1990 and 1991. Bourque could work only
on day shifts and, as a result, she was assigned by O’Connell
almost exclusively to duties with HVNA, since that agency
worked on an 8 to 4:30 schedule 5-days a week. O’Connell’s
records of assignments to HVNA from May 21, 1990, to
June 27, 1991, show that Bourque worked at HVNA 8 days
(out of 9) at the end of May 1990, the 19 days out of 21
days in June when assignments to HVNA were made;5 21
days out of 21 days in July, 17 days out of 22 days in Au-
gust; 7 days out of 18 in September, 12 days out of 22 days
in October; 12 days out of 16 days in November; 12 days
out of 16 days in December; then in 1991, 7 days out of 17;
in February 6 days out of 18; in March 11 days out of 17;
in April 16 days out of 20; in May 18 days out of 22; and
in June, up to the June 27, 9 days out of 19.6
Bourque testified that she had taken vacation time in Sep-
tember and October 1990, which would tend to explain the
lower percentage of days worked in those 2 months.
Eileen Bourque was not a member of any labor organiza-
tion, and O’Connell’s operation was nonunion. HVNA, how-
ever, was unionized, and its nurses were represented during
this period by Local 285 of the Service Employees Inter-
national union.
Beginning in September 1990, the Union and HVNA were
engaged in negotiations looking to a new collective-bar-
gaining agreement. In general, these negotiations do not con-
cern us, except for one issue. That was a question of security
for employees while in the parking lot at HVNA’s building,
and in passing between their cars and the building. Dorothy
Roche, a former employee of HVNA, who had been em-
ployed in the September 1990–January 1991 period, and was
a member of the Union’s negotiating team in that period, tes-
tified credibly, and without contradiction, that HVNA was
located in a bad part of town; that the parking lot of their
building was used by drug dealers and users, prostitutes, and
other menacing and undesirable persons. Roche testified, as
did Bourque and Cavanaugh, that at least one employee, and
probably two, had been assaulted in the parking lot, or on
entering the HVNA building from the parking lot. HVNA
was aware of the issue and, according to Pat Cavanaugh,
they had engaged the Holyoke police for a while, then they
had hired two different security services to attempt to take
care of the problem. Cavanaugh thought that the hiring of the
second security service early in December had settled the
problem, but Roche maintained that the issue continued to
rankle the Union. She stated that at a meeting in January, the
Union voted to engage in a protest of the lack of progress
in negotiations in the form of ‘‘work-to-rule’’ tactics.7
Following this decision, the HVNA nurses and other em-
ployees began the work-to-rule campaign in the mornings by
assembling in the parking lot before the 8 a.m. starting time,
then proceeding into the building, as a body, precisely at 8
o’clock.8
Eileen Bourque, although not a party to any of this union
activity, was aware from talking to and overhearing HVNA
employees discuss the situation and the work-to-rule cam-
paign. Bourque was also concerned about the dangers in and
around the parking lot. She testified that she had been used
to arriving at the facility at 7:40 or 7:45 a.m. and walking
into the building. If the door was locked, she would wait out-
side until someone who had a key came along.9 However,
after the attacks on others, Bourque would remain locked in
her car until she saw someone else heading for the building.
On one day, Bourque was not specific about the date, but it
must have been mid-Janaury,10 she arrived at her usual time,
then had to sit and wait for 10 or 15 minutes. Finally the
work-to-rule group assembled and as they were walking in,
Bourque joined the group and entered the building with
them.
This did not escape the attention of Pat Cavanaugh, who
was called to a window of the HVNA building, and observed
Bourque walking in with the demonstrating HVNA employ-
ees. Cavanaugh must have assumed that Bourque was ex-
pressing solidarity with the HVNA employees, because, as
she put it, she was ‘‘concerned’’ because she didn’t know if
Bourque ‘‘understood who she works for,’’ that is, whether
she worked for O’Connell or for HVNA. Cavanaugh there-
upon got on the telephone with Francis O’Connell and asked
him ‘‘what’s going on with Eileen?’’ O’Connell said he
would find out and get back to her. According to Cavanaugh,
O’Connell did get back to her very soon, and explained that
Bourque had walked in with the HVNA people because she
had no key and was concerned about her safety in walking,
alone, from her car to the building.11
687HOLYOKE VISITING NURSES ASSN.
produce that list here, however, and I think the testimony of
Bourque and Roche is more credible as to the timing of the incident.
Cavanaugh derived ever having told O’Connell that he
should not refer Bourque to HVNA.
Francis O’Connell recalled receiving a call from Pat
Cavanaugh, he thought it was sometime in December, but re-
called that negotiations were going on. Cavanaugh told him
that Bourque had waited in her car and walked in to the
building with the union people. She told O’Connell that she
wanted to know the reason that this was happening.
O’Connell said he then asked Bourque about the situation,
she explained about the safety problem. O’Connell then got
back to Cavanaugh, the explanation was acceptable to her,
and that was that. O’Connell did not recall when he spoke
to Bourque about the situation, but he presented no appoint-
ment records, or any other testimony which would help to
establish when it happened. He did deny ever threatening
Bourque, or telling her she would not be referred to HVNA.
The incident was recalled, somewhat similarly, by Eileen
Bourque. She testified that on February first, after she re-
ceived the doctor’s certificate releasing her to return to work
as of February 5, she dropped it off at O’Connell’s office.
Then, on February 4 she was called by O’Connell’s secretary
and asked to meet with Francis O’Connell on that Wednes-
day, the 6th.
At the meeting, only O’Connell and Bourque were present.
O’Connell told Bourque that she had been observing walking
into the HVNA offices with the work-to-rule group of
HVNA employees. He said that Pat Cavanaugh had told him
that this was a change from Bourque’s normal reporting time
and that ‘‘as far as she (Cavanaugh) was concerned it was
a demonstration of Bourque’s allegiance of the Union.’’
O’Connell quoted Cavanaugh as requesting that Bourque not
be reassigned to HVNA.
Bourque explained to O’Connell her reasons for walking
in with the group. She talked about safety, about having no
key, and affirmed that she had in ‘‘no way’’ taken part in
any union activity, attended no meetings, nor wore any
badges, and that she felt she was being unfairly judged guilty
by association. Bourque asked if she could speak to Pat
Cavanaugh, but O’Connell said no, that he would speak with
Cavanaugh and explain Bourque’s reasons concerning secu-
rity. He then told Bourque that if Cavanaugh wanted to stand
by her decision, they did not have to give any reasons, he
would not send Bourque to them again. He explained to
Bourque that he had delayed meeting with her on this matter
because she had been sick and he did not want to trouble
her. He told her that she should not mention this meeting,
that HVNA was his bread and butter, and that if that was
what they wanted, he would oblige them. O’Connell con-
cluded by telling Bourque that she should remain neutral and
uninvolved with the HVNA staff. Her relationship was pro-
fessional only, and had no involvement with the Union.
A week or so later, about February 13 or 14, O’Connell
called Bourque. He apologized for not getting back to her
sooner, but pleaded the press of business and late shifts. He
told Bourque that Cavanaugh understood the safety issue and
that everything was back to normal.
Bourque then asked about scheduling. O’Connell told her
the school vacation week of February 18 to 22 was already
assigned, but if anything else came in she would be consid-
ered for assignment. As it turned out, Bourque worked all of
that vacation week, and thenceforth, as noted above, regu-
larly until June 1991, but she was not referred to HVNA, or
anywhere else, from February 5 to 19, excluding February 12
and 18, which show up on O’Connell’s schedule as days
when no one was referred to HVNA.
What happened here does not seem to be in question.
Bourque walked in to the HVNA office with the protesting
HVNA employees. She was observed by Pat Cavanaugh.
Cavanaugh called O’Connell for an explanation. O’Connell
asked for, and received, an explanation from Bourque.
O’Connell called Cavanaugh. She accepted Bourque’s expla-
nation. O’Connell notified Bourque and the incident was
ended.
The problems come with the timing, and what was said,
and both of these questions depend on the credibility of the
witnesses here.
On the times, I have already found, based on the testimony
of Dorothy Roche, that the Union vote to engage in work-
to-rule was in January, and that the work-to-rule demonstra-
tions in which Roche observed Bourque, also occurred in
January, not too long before the parties reached agreement.
Cavanaugh seems to place the time for the events in this case
back in late November or early December, but she seems to
pin her recollection on the changes in security measures
taken by management, rather than the Union’s reactions to
the progress of negotiations. I have also noted that
Cavanaugh did not bring in her records which could have
shown the telephone calls between O’Connell and herself.
Likewise, O’Connell brought in no appointment books or
other records showing a meeting with, or call to, Bourque in
that November or December time period.
On these facts, and my impressions of the demeanor of the
witnesses here, I credit the testimony of Bourque and Roche
that the work-to-rule unified walk to HVNA’s offices took
place in January.
As to the contents of conversations between the parties, it
is clear, first, that Cavanaugh was upset, despite her protesta-
tions to the contrary, by the work-to-rule demonstrations.
The Union succeeded in grabbing her attention. Her own tes-
timony showed it. She was upset with the sight of Bourque
marching, in lockstep, with the union people, right into the
HVNA offices. She picked up the telephone and called
O’Connell to ask him for an explanation. And I believe, from
her testimony and her demeanor, that she told O’Connell
something to the effect that he should not send Bourque to
HVNA anymore.
O’Connell, of course, would have been upset by this. But
he appeared to me to be a person who would act tactfully
and compassionately in dealing with people. He is a reg-
istered nurse himself, after all. Thus, it is completely con-
sistent with my view of him that he would wait until her re-
lease date from her physician, February 5, to call her in to
talk about the matter, just as it is consistent with my obser-
vations of him, that he would not let Bourque go to
Cavanaugh, but he would undertake to smooth things out
himself. He accomplished that result and Bourque was again
assigned to HVNA.
Bourque’s testimony was candid and straightforward, and
my observations of her demeanor convince me that she was
telling the truth in her descriptions of her conversations with
O’Connell.
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See New Horizons for the Retarded, 283 NLRB 1173 (1987).
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
I, therefore, find that Cavanaugh told O’Connell, sometime
around January 16, that Bourque was not to be sent to
HVNA. O’Connell, in turn, waited until Bourque was cleared
to return to work to meet with her on February 6. He told
her what Cavanaugh had said, obtained Bourque’s expla-
nations, and then worked the matter out with Cavanaugh.
O’Connell then called Bourque around February 13 or 14
and told her that things were back to normal.
Since the action against Bourque resulted from
Cavanaugh’s conclusion that Bourque was supporting the
Union, the action that Cavanaugh and O’Connell took against
Bourque constituted a violation of Section 8(a)(1) of the Act.
Guerdon Industries, 255 NLRB 610 (1981). Further, this dis-
crimination against Bourque to interfere with perceived im-
pressions of union activity, constitute a violation of Section
8(a)(1) and (3) of the Act. New River Industries, 299 NLRB
773 (1990); Armstrong Rubber Co., 283 NLRB 625 (1987).
The facts noted above, show that Bourque would have
worked at least some of the days that HVNA used referrals
from O’Connell in the period between February 5, 1991,
when Bourque was released by her doctor, and February 19,
when she was actually assigned to HVNA. The question of
just how many days must wait until the compliance stage of
this proceeding.
IV. THE REMEDY
Having found that the Respondents have engaged in unfair
labor practices, I shall recommend that they cease and desist
therefrom, and that they take certain affirmative action de-
signed to effectuate the policies of the Act. Having found
that the Respondents unlawfully discriminated against Eileen
Bourque during February 5 to 19, 1991, but have since rein-
stated her to her former position, I shall recommend that the
Respondents make Bourque whole for any loss of earnings
she suffered as a result of the discrimination against her to-
gether with interest thereon.12
CONCLUSIONS OF LAW
1. Holyoke Visiting Nurses Association is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. O’Connell Professional Nurse Service is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
3. Holyoke Visiting Nurses Association and O’Connell
Professional Nurse Service are joint employers within the
meaning of the Act.
4. The Respondents, by refusing to refer or to accept refer-
ral of Eileen Bourque from February 5 and 19, 1991, vio-
lated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondents, Holyoke Visiting Nurses Association
and O’Connell Professional Nurse Service, joint employers,
Holyoke, Massachusetts, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to refer or refusing to accept services of em-
ployees because of their protected and/or union activities.
(b) In any like or related manner interfering with, restrain-
ing or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Eileen Bourque whole for any loss of earnings,
plus interest suffered because of the Respondent’s unlawful
actions against her.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at their locations in Holyoke, Massachusetts, cop-
ies of the attached notice marked ‘‘Appendix.’’14 Copies of
the notice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.