Riverdale Nursing Home

National Labor Relations Board - Board Decisions

Jun 19, 1995

317 N.L.R.B. 881 (N.L.R.B. 1995)

881
317 NLRB No. 130
RIVERDALE NURSING HOME
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.
Riverdale Nursing Home, Inc. and N and W Reg-
istry, Inc., Joint Employers and Nelson R.
Nunez. Case 2–CA–27202
June 19, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On March 15, 1995, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Re-
spondents jointly filed exceptions and a supporting
brief. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified below and to adopt the rec-
ommended Order as modified and set forth in full
below.
1. The Respondents have excepted to the judge’s de-
nial of a motion by Respondent Riverdale Nursing
Home, Inc. (Riverdale) to adjourn the hearing to a later
date. On January 16, 1995, Riverdale requested an ad-
journment of the hearing due to the unavailability of
Riverdale’s administrator, who, it asserted, was an es-
sential witness in the case. In its motion, Riverdale
noted that Respondent N and W Registry, Inc. (N and
W) had acceded to its request for an adjournment.
Counsel for the General Counsel, however, opposed
the motion, stating that the hearing, which was sched-
uled for January 23, 1995, had been calendared for
over 7 months and that he had trial conflicts on River-
dale’s proposed alternate dates.
Riverdale’s motion was referred to Associate Chief
Administrative Law Judge Edwin H. Bennett, who de-
nied the motion in an order dated January 17, 1995.
Judge Bennett noted in his Order that the hearing had
been scheduled for over 7 months and that ‘‘Respond-
ent merely asserts the unavailability of an essential
witness but presents no supporting details to justify its
request made at this late date.’’ At the hearing, the Re-
spondents, who by this time were jointly represented,
renewed the request for adjournment. Despite the fact
that the original motion was denied by Judge Bennett
in large part due to the Respondent’s failure to provide
supporting details concerning the reason for the ab-
sence of an essential witness, counsel for the Respond-
ents again failed to substantiate at the hearing any jus-
tification for their witness’s absence. Judge Biblowitz,
who presided at the hearing, properly denied the Re-
spondents’ renewed motion for an adjournment for the
reasons given by Judge Bennett in his January 17,
1995 Order.
2. The judge found that Riverdale and N and W are
joint employers exercising common control over the
employment of certain employees of Riverdale, includ-
ing Charging Party Nelson Nunez. Respondents ex-
cepted to this conclusion, and we find merit in the ex-
ception.
The only evidence adduced to support the conclu-
sion that the Respondents are joint employers is found
in the testimony of Nunez, who stated that over the
course of his 2-year employment at Riverdale he re-
ceived some paychecks and a W-2 form from N and
W. Nunez had absolutely no contact with N and W,
however, and he provided no testimony about the na-
ture of the relationship between Riverdale and N and
W. Nunez’ testimony indicates that he was hired, su-
pervised entirely, and fired by Cruz Matos, a super-
visor employed by Riverdale.
The Respondents, who were jointly represented at
the hearing, put in no evidence in defense of the alle-
gations contained in the complaint. The General Coun-
sel subpoenaed from both Respondents business
records that would have shed light on the relationship
between the two entities. Neither Respondent, how-
ever, complied with the subpoenas, and the General
Counsel never moved to enforce them. In addition, the
Respondents produced no witnesses to testify regarding
either the joint employer allegation or the substantive
allegations of the complaint, and the General Counsel
did not compel such testimony. Consequently, the
General Counsel based his case regarding the joint em-
ployer status of the Respondents solely on Nunez’ tes-
timony that he received some paychecks and a W-2
form from N and W over the course of his 2-year em-
ployment at Riverdale.
From the Respondents’ noncompliance with the
General Counsel’s document subpoenas and their fail-
ure to produce any witnesses whatsoever to testify in
rebuttal, the judge drew an inference adverse to the
Respondents that such evidence, if produced, ‘‘would
have established that N and W had additional control
over Nunez’ terms and conditions of employment.’’
The judge concluded that Nunez’ testimony, when con-
sidered together with the adverse inference and the fact
that the Respondents were jointly represented by coun-
sel, was sufficient to establish a joint employer rela-
tionship between the two Respondents. We think the
judge erred in concluding that the Respondents in this
case are joint employers.
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.’’
In order to establish that two otherwise separate en-
tities operate jointly for the purposes of labor relations,
there must be a showing that the two employers
‘‘share or codetermine those matters governing the es-
sential terms and conditions of employment.’’ TLI,
Inc., 271 NLRB 798 (1984), citing NLRB v. Browning-
Ferris Industries, 691 F.2d 1117 (3d Cir. 1982). The
employer in question must meaningfully affect ‘‘mat-
ters relating to the employment relationship such as
hiring, firing, discipline, supervision, and direction.’’
TLI, supra. The determination of whether two entities
are joint employers ‘‘is essentially a factual issue.’’
Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964).
The record in this case is devoid of any direct evi-
dence that N and W meaningfully affected Nunez’ em-
ployment. Nunez testified that he had no contact with
N and W whatsoever and that his entire employment
relationship with Riverdale was under the control of
Matos, a Riverdale supervisor who hired, managed,
and fired him. The evidence regarding Nunez’ receipt
of some paychecks and a W-2 form from N and W is
simply not enough, standing alone, to meet the evi-
dentiary standard as established above.
Furthermore, we think the judge’s use of the adverse
inference to fill this evidentiary gap sweeps too broad-
ly. With so little direct evidence on the record to indi-
cate a joint employer relationship between the two Re-
spondents, the adverse inference drawn by the judge
constitutes virtually the General Counsel’s entire case
regarding the Respondents’ joint employer status.
Based on this record, there is insufficient evidence to
conclude that Riverdale and N and W are joint em-
ployers with common control over the employment of
Nunez. Accordingly, we dismiss the complaint against
N and W.
3. We adopt the judge’s conclusion that Respondent
Riverdale discharged Nunez because of his attempts to
join the Union and obtain the benefits of the union
contract in violation of Section 8(a)(3) and (1) of the
Act. There is clearly substantial evidence, as outlined
by the judge in his decision and without the use of an
adverse inference, to support his conclusion that Re-
spondent Riverdale terminated Nunez because of his
efforts to join the Union and secure the benefits of the
collective-bargaining agreement.
Accordingly, we shall modify the judge’s conclu-
sions of law, recommended Order, and notice to reflect
our holding that Respondent N and W is not a joint
employer vicariously liable for the violations of the
Act committed by Respondent Riverdale.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 1.
‘‘1. Respondent Riverdale Nursing Home, Inc. is an
employer within the meaning of the Act and has been
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.’’
2. Substitute the following for Conclusion of Law 3.
‘‘3. Respondent Riverdale Nursing Home, Inc. vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Nelson Nunez on or about February 18, 1994.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Riverdale Nursing Home, Inc., Bronx,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Local 144, Hotel, Hos-
pital, Nursing Home and Allied Services Union or any
other labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Nelson Nunez immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner
set forth in the remedy section of the judge’s decision.
(b) Remove from its files any reference to the un-
lawful discharge and notify Nunez in writing that this
has been done and that the discharge will not be used
against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in the Bronx, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’2 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
883RIVERDALE NURSING HOME
1 Unless indicated otherwise all dates referred to 1994.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
WE WILL NOT discharge or otherwise discriminate
against our employees because they engaged in activi-
ties in support of Local 144, Hotel, Hospital, Nursing
Home and Allied Services Union or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Nelson Nunez immediate and full re-
instatement to his former position or, if that position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify [each of them, him, her] that we have re-
moved from our files any reference to his [her] discharge and
that the discharge will not be used against him [her] in any
way.
RIVERDALE NURSING HOME, INC.
Eric Brooks, Esq., for the General Counsel.
Stuart Bochner, Esq. (Horowitz & Pollack), for the Respond-
ents.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on January 23, 1995, in New York, New
York. The complaint, which issued on May 23, 1994,1 and
was based on a charge and an amended charge filed by Nel-
son R. Nunez on February 22 and April 26, alleges that Riv-
erdale Nursing Home, Inc. (Respondent Riverdale), and N
and W Registry, Inc. (Respondent N and W, and at times
collectively called Respondents), allegedly joint employers,
discharged Nunez on about February 18 in violation of Sec-
tion 8(a)(1) and (3) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent Riverdale is a corporation with an office and
place of business located in the Bronx, New York (the facil-
ity), and is engaged in the operation of a nursing home pro-
viding medical care for the aged. Annually, it derives gross
revenues in excess of $100,000 and purchases and receives
at the facility goods valued in excess of $5000 directly from
points outside the State of New York. I find that Respondent
Riverdale has been engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. The complaint also
alleges that Respondent N and W is a corporation with an
office and place of business in Brooklyn, New York, where
it has been engaged in the operation of an employment refer-
ral service for the health care industry; Respondent N and W
denies this allegation. It is further alleged that Respondents
are joint employers and Respondents deny this allegation as
well.
II. LABOR ORGANIZATION STATUS
Respondents admit, and I find, that Local 144, Hotel, Hos-
pital, Nursing Home and Allied Services Union (the Union),
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE FACTS
The Union represents certain of the employees employed
by Respondent Riverdale, including housekeepers, attendants,
maintenance workers, dishwashers, kitchen helpers, cooks,
assistant chefs, chefs, dietitians, and assistant dietitians,
among others. The contract in effect during the period herein
had a duration of April 1, 1981, through March 31. The con-
tract required all employees employed in the bargaining unit
to become members of the Union within 30 days.
Nunez went to the facility on December 16, 1991, to get
a job; his father had been employed there and told him to
speak to Cruz Matos, the food service director at the facility.
He met with her in her office at the facility, and she told
him that he was hired as a diet aide (pot washer), explained
to him what he would be doing, and that he would begin
work immediately. She also had him sign a copy of ‘‘Person-
nel Policies and Regulations for Riverdale Nursing Home,’’
as well as a listing of his job responsibilities, also on Re-
spondent Riverdale’s letterhead. She told him that after a few
weeks of employment he would need an identification badge,
and a few weeks later he went to the office of Respondent
Riverdale’s administrator, had his picture taken, and received
an identification card with Respondent Riverdale’s name list-
ing him as a pot washer in the dietary department. Matos
prepared the work schedule for the kitchen employees
monthly, and made revisions on the schedule as well. Nunez
performed the same work as other dishwashers at the facility,
had a timecard that was maintained with the other employ-
ees, and was listed on the work schedule together with the
other kitchen employees. He regularly worked on Saturday
and Sunday, but he was also called to work to cover for
other employees; it was Matos who called him on those oc-
casions. In 1992, he filled out a form of Respondent River-
dale for requesting vacation or other days; Matos signed the
form as ‘‘Supervisor’s signature.’’ Nunez also signed an
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘Absence Report Form’’ for Respondent Riverdale in Sep-
tember 1993; Matos signed as ‘‘Authorizing signature.’’ On
one occasion he felt that the amount on his paycheck was
not correct and he told Matos about it and she corrected it.
On another occasion, he asked Matos for some time off be-
cause he was unable to work due to an injury that he re-
ceived and she granted him the time off. When he returned
to work he gave Matos a doctor’s letter stating that he should
perform lighter service and she put him on lighter duty for
about a month.
His first check while employed at the facility was under
the same ‘‘SSI Agency.’’ Sometime thereafter, the company
name on his paychecks changed to Respondent N and W, al-
though there had been no change in his job responsibilities.
He also received a W-2 form from Respondent N and W, al-
though he never had any contact with anybody from Re-
spondent N and W.
Beginning about early 1992, Nunez complained to Matos
that he was not receiving the benefits, such as sick days, va-
cations, and holidays, that other employees at the facility,
who were union members, were receiving. Matos first told
him that he didn’t get the benefits as he was not eligible to
join the Union because he did not work enough hours. Sub-
sequently, she told him that he was not eligible for the bene-
fits because he was working for an agency. He told her that
he had not been hired through an agency and that she knew
that because she interviewed and hired him. She told him
‘‘that these were matters of the administration. It was not her
problem.’’ On about six or seven occasions during his em-
ployment at the facility he complained to Matos about not
being in the Union. In July 1992, he filed a grievance
through the Union that he was not allowed to be in the bar-
gaining unit and Union. The grievance states that it was
withdrawn in 1993. In November 1993, Nunez filed an unfair
labor practice charge against Respondent Riverdale, alleging
that it violated Section 8(a)(3) of the Act by refusing to
allow him to join the Union and be covered by the Union’s
contract with Respondent Riverdale. He withdrew the charge
the following month. On December 1, 1993, Nunez filed an-
other grievance with the Union stating: ‘‘Mr. Nunez has still
not been placed in the bargaining unit to date.’’ About a
week later, Martha Cayaso, business representative for the
Union, called him and told him that she had arranged for a
meeting with Philip Buchsbaum, the administrator of the fa-
cility. On about December 8, 1993, Cayaso, a union delegate,
and Nunez met with Buchsbaum in his office. Nunez testi-
fied that Cayaso asked Buchsbaum why Nunez was not in
the Union and he said that he had other employees who were
not in the Union and that he ‘‘wasn’t signing checks for
me.’’ He also said that if he wanted to, he could fire Nunez,
but they wouldn’t do it because they were happy with his
work. At one point, Cayaso told Nunez that Buchsbaum
wanted to speak privately with her, so Nunez left.
Cayaso testified that, after Nunez filed his grievance, she
called Buchsbaum and arranged to meet at his office at the
facility on about December 6, 1995. She discussed a number
of grievances with him, including Nunez’ December 1, 1993
grievance. She asked him why he didn’t let Nunez join the
Union because he had been employed at the facility since
1991. Buchsbaum said that he couldn’t help her with that
grievance, because Nunez did not work for him, he worked
for an agency. Cayaso could not specifically recollect the
agency name: ‘‘S and W, something like that.’’ Buchsbaum
told her that he could help her with other grievances, but not
with Nunez’: ‘‘He cannot help me with anything relating to
agency employees.’’ She asked him what the problem was
with Nunez; he was on the schedule and was doing his job.
Buchsbaum said, ‘‘I have no problem with his work. We are
happy with his work, but you insist and let him join the
Union, I . . . have to let him go.’’ Cayaso said that she
would like to have Nunez present at the meeting and they
agreed to meet about 2 days later, at the same place, with
Nunez. At this meeting, Cayaso again asked Buchsbaum why
he didn’t let Nunez join the Union and Buchsbaum said that
as he had previously told her Nunez did not work for him.
She told him that Nunez had told her that he was hired by
Matos, Respondent Riverdale’s supervisor, and didn’t know
anything about an agency. She said that he did the same
work as others at the facility, the only difference is that his
payroll check is from another company, ‘‘So you have to
bring him to the Union.’’ Buchsbaum said that he was not
a permanent worker, and Cayaso said that he was not an on-
call employee, because he was on the schedule. Buchsbaum
said that they call him when somebody calls in sick. She said
that Buchsbaum had previously said that he was happy with
Nunez’ work and Buchsbaum, who appeared to become
angry, said, ‘‘Yes, we like his work. But if you insist . . .
I can fire him now.’’ Buchsbaum asked if they could speak
privately, and Nunez left. Buchsbaum told her that prior
business agents never gave him problems, and that although
he was happy with Nunez’ work, if the Union insisted that
he be allowed to join the Union, he would let him go.
On December 9, 1993, Nunez filled out a union dues-au-
thorization form; on Cayaso’s instructions, he gave one copy
to the Union and brought the other portion to Respondent
Riverdale that same day. He gave it to the bookkeeper, who
told him that he couldn’t get into the Union because he was
from a different agency. Buchsbaum, who was in the room
at that time, made a waving motion with his hand to the
bookkeeper, indicating that she should accept the card, which
she did, and Nunez left. Nunez testified that in February,
Cayaso told him to fill out another union dues-authorization
card and that the Union would send it to Respondent River-
dale to pressure them to let him join the Union. He testified
that he filled out and dated this form on February 10, al-
though the date is difficult to decipher. He gave a part of this
form to Cayaso, and gave the other part to another depart-
ment of the Union.
Theresa Copeland, who is employed by the Union as a
clerk typist/word processor, testified that she typed a letter,
dated December 16, 1993, demanding arbitration of Re-
spondent’s ‘‘failure/refusal to allow Nelson Nunez . . . to
join the collective bargaining unit.’’ She then brought the let-
ter to the Union’s mailroom and never received the letter
back. By letter dated December 27, 1993, counsel for the
Greater New York Health Care Facilities Association, the as-
sociation through which Respondent Riverdale negotiates
with the Union, wrote to the arbitrator in response to the
Union’s letter dated December 16, 1993: ‘‘The Union’s de-
mand for arbitration in the above-named matter must be de-
nied due to the fact that the grievant is not employed by Riv-
erdale Nursing Home, nor had he ever been employed by
Riverdale Nursing Home.’’ Copeland also identified a letter,
885RIVERDALE NURSING HOME
dated February 10, from the Union to the Respondent River-
dale, stating, inter alia:
As you know, the Union Security clause of your col-
lective bargaining agreement with the Union requires an
employee, upon completion of thirty days to become
member in good standing with the Union.
Enclosed please find copies of the dues deduction
cards which is necessary for you to begin check-off for
the following workers:
Nelson Nunez Lorraine Nesbeth
She typed this letter and brought it to the Union’s mail room.
The certified mail receipt for this letter, undated, was re-
ceived in evidence.
As stated above, Matos prepares a monthly schedule for
the kitchen employees, posts it prior to the end of the prior
month, and makes whatever changes are necessary on it. Her
name is the top one on the schedule, with the classification
food service director. Nunez’ classification on the schedule
is utility man under a classification: ‘‘On call staff.’’ The
monthly schedule for November 1993 was received in evi-
dence. Because of many crossouts and changes it is difficult
to determine how many days Nunez worked that month, but
it appears to be between 10 and 13 days. The February work
schedule for the dietary department was posted in late Janu-
ary; prior to February 18 Nunez worked, or was scheduled
to work, about 10 days that month. His final day of work
at the facility was February 16. He was scheduled to work
on February 18 from 6 p.m. to 2 a.m. At about noon that
day Matos called him at home and told him, ‘‘You are not
working for us anymore.’’ When he said, ‘‘Oh, yeah?’’ she
replied, ‘‘No, you’re outside the schedule.’’ She never gave
a reason, only saying, ‘‘Today, I don’t know anything.’’
Nunez was able to obtain a post-February 16 copy of the
February work schedule; it shows that his post-February 16
workdays are erased from the schedule.
IV. ANALYSIS
It is alleged that Respondent Riverdale and Respondent N
and W are joint employers. The evidence establishes that for
his 2 years and 2 months of employment at the facility,
Nunez was employed by Respondent Riverdale. He was
interviewed and hired by Matos, clearly a supervisor within
the meaning of the Act for Respondent Riverdale. She told
him what work he was being hired to do, had him fill out
the required employment forms, all containing Respondent
Riverdale’s name, and scheduled his hours, as well as the
hours of the other kitchen employees, on a monthly basis. He
performed the same work as the other dishwashing employ-
ees, had his timecard together with the other kitchen employ-
ees, and wore an identification card containing Respondent
Riverdale’s name. The only differentiating factor between
him and the other employees at the facility, apparently, is
that his paycheck and W-2 form came from Respondent N
and W, although, originally, when he was first hired, the
company name on his paycheck was ‘‘SSI.’’ What makes
this issue somewhat difficult is that there is absolutely no
record evidence about Respondent N and W, other than that
they prepared Nunez’ paycheck and W-2 form. Counsel for
General Counsel subpoenaed numerous documents relevant
to this issue from Respondents, but counsel for Respondents
refused to turn over any of these documents. In addition, Re-
spondents presented no witnesses.
In TLI, Inc., 271 NLRB 798 (1984), the Board, citing
NLRB v. Browning Ferris Industries, 691 F.2d 1117 (3d Cir.
1982), stated:
There the Court found that, where two separate entities
share or codetermine those matters governing the essen-
tial terms and conditions of employment, they are to be
considered joint employers for purposes of the Act.
Further, we find that to establish such status there must
be a showing that the employer meaningfully affects
matters relating to the employment relationship such as
hiring, firing, discipline, supervision and direction.
In Brown Ferris, the court stressed the difference between
joint employer and single employer status, and that joint em-
ployer status does not depend on the existence of a single
integrated enterprise, nor does it require a finding of a lack
of arm’s-length transaction or unity of control or ownership,
as is required in single employer cases. All the cases on the
subject agree that the issue of whether an employer possesses
sufficient control over certain employees employed by an-
other to constitute a joint employer is essentially a factual
issue. Laerco Transportation, 269 NLRB 324 (1984). In
Holyoke Visiting Nurses Assn., 310 NLRB 684 (1993), that
employer provided home care and nursing services. It ob-
tained nurses from a referral agency for nurses. The Board
found that the home care agency and the referral agency con-
stituted joint employers because both ‘‘exercised sufficient
power over the employees in question.’’
The evidence establishes that Respondent Riverside con-
trolled every aspect of Nunez’ employment (and lack of em-
ployment as evidenced by the fact that Matos fired him on
February 18) except for one aspect, the fact that he was paid
by a check from Respondent N and W and received his W-
2 form from Respondent N and W. This factor, while appear-
ing minor, indicates that Respondent N and W shares matters
concerning Nunez’ terms and conditions of employment with
Respondent Riverdale. Sinclair & Valentine Co., 238 NLRB
754 (1978); Manpower, Inc., 164 NLRB 287 (1967). In
AMP, Inc., 218 NLRB 33, 35 (1975), the administrative law
judge, as affirmed by the Board, found that one employer
was a joint employer with another when its only actions were
the recruitment and referral of employees, and that the em-
ployees were paid by its paychecks. Two other factors herein
indicate that a finding of joint employer status is warranted:
that the same lawyer represented both Respondents and that
Respondents did not comply with the subpoenas issued by
counsel for the General Counsel and did not present any wit-
nesses or evidence. Therefore, counsel for General Counsel
is entitled to an adverse inference that these documents and
witnesses would have established that Respondent N and W
had additional control over Nunez’ terms and conditions of
employment.
In Auto Workers v. NLRB, 459 F.2d 1329, 1338 (D.C. Cir.
1972), the court stated:
The reason why existence of a subpoena strengthens the
force of the inference should be obvious. If a party in-
sists on withholding evidence even in the face of a sub-
poena requiring its production, it can hardly be doubted
he had some good reason for his insistence on suppres-
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sion. Human experience indicates that the most likely
reason for this insistence is that the evidence will be
unfavorable to the cause of the suppressing party.
In National Football League, 309 NLRB 78, 97–98 (1992),
Administrative Law Judge Benjamin Schlesinger stated:
The adverse inference rule states that, when a party has
relevant evidence within his control which he fails to
produce, that failure gives rise to an inference that the
evidence is unfavorable to him. An inference may even
be warranted that the material which the party refuses
to show supports exactly the opposite of what he con-
tends at the hearing.
In International Automated Machines, 285 NLRB 1122,
1123 (1987), the Board stated, ‘‘when a party fails to call
a witness who may reasonably be assumed to be favorably
disposed toward the party, an adverse inference may be
drawn regarding any factual question on which the witness
is likely to have knowledge.’’ In NLRB v. Shelby Memorial
Hospital Assn., 1 F.3d 550, 553 (7th Cir. 1993), the court
stated, ‘‘The failure of an employer to produce relevant evi-
dence particularly within its control allows the Board to draw
an adverse inference that such evidence would not be favor-
able to it.’’ I therefore find an adverse inference against the
Respondents due to their failure to turn over the subpoenaed
documents as well as their failure to present any witnesses
herein. This adverse inference, together with the evidence
discussed above, leads me to conclude the Respondent River-
dale and Respondent N and W were joint employers.
The remaining allegation is that on about February 18, Re-
spondent discharged Nunez because of his attempts to join
the union and obtain the benefits of the Union contract, in
violation of Section 8(a)(1) and (3) of the Act. The credible
testimony establishes beginning in about early 1992, Nunez
complained to Matos on five or six occasions that he was not
receiving the fringe benefits that the other (union) employees
were receiving. In July 1992, and on December 1, 1993, he
filed grievances with the Union complaining that he was not
in the Union, and on November 16, 1993, he filed a charge
with the Board alleging that Respondent Riverdale violated
Section 8(a)(1) and (3) of the Act by refusing to let him join
the Union. He withdrew this charge the following month.
When Cayaso met with Buchsbaum, he told her that Nunez
was not in the Union because he didn’t work for him, he was
an agency employee. He said that he was happy with Nunez’
work, but if she insisted on putting him in the Union, he
would have to let him go. When they met again 2 days later,
Buchsbaum again said that he was happy with Nunez’ work,
‘‘but if you insist . . . I can fire him now.’’ The evidence
establishes that Nunez and the Union did not go along with
Buchsbaum’s threat, and on December 9, 1993, Nunez filled
out a union authorization card and left part with Respondent
Riverdale, and on about February 10, filled out another card,
but left both portions with the Union. In addition, on Decem-
ber 16, 1993, Copeland sent Respondent Riverdale a demand
for arbitration of Nunez’ dispute, and on February 10 sent
Nunez’ dues-authorization card to Respondent Riverdale ‘‘to
begin checkoff.’’ About a week after Respondent Riverdale
received this letter, Matos notified Nunez that he was fired,
without either a reason or a warning, fulfilling Buchsbaum’s
threat 2 months earlier. Considering this background, and the
sudden nature of Nunez’ termination, it is difficult to imag-
ine a more obviously discriminatory discharge, even without
adverse inferences, and I so find. Wright Line, 251 NLRB
1083 (1980).
CONCLUSIONS OF LAW
1. The Respondents, Riverdale Nursing Home, Inc. and N
and W Registry, Inc., are joint employers within the meaning
of the Act and have been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondents violated Section 8(a)(1) and (3) of the Act
by discharging Nelson R. Nunez on about February 18, 1994.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they be or-
dered to cease and desist therefrom, and take certain affirma-
tive action designed to effectuate the policies of the Act.
As I have found that Respondents unlawfully discharged
Nunez, I shall recommend that they be ordered to offer him
immediate reinstatement to his former position of employ-
ment or, if that position no longer exists, to a substantially
equivalent position without prejudice to his seniority or other
rights and privileges, to make him whole for the loss he suf-
fered due to the discrimination, and to remove from their
files any reference to the discharge. Backpay shall be com-
puted in accordance with F. W. Woolworth, 90 NLRB 289
(1950), and New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommend Order omitted from publication.]