Edward Blankstein Incorporated

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 951 (N.L.R.B. 1979)

EDWARD BLANKSTEIN INCORPORATED
Edward Blankstein Incorporated and Fanette Pollack.
Case 22-CA-8262
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On May 23, 1979, Administrative Law Judge Irwin
Kaplan issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge' and to
adopt his recommended Order, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent, Edward
Blankstein Incorporated, Princeton, New Jersey, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraphs l(a) and
(b):
"(a) Discharging employees, or failing or refusing
to reinstate them, for engaging in protected concerted
i Respondent has excepted to certain credibility findings made by the Ad-
ministratiVe Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. In adopting the Adminis-
trative Law Judge's Decision, Member Murphy does not rely on Alvin J.
Bart and Co., Inc.. 236 NLRB 96 (1978). in which she dissented and which is
cited in this Decision. That case is inapposite to a situation such as that here
involving an admission against interest. In any event, as she finds it to be an
admission against interest, she does agree with the Administrative Law
Judge that Blankstein's affidavit is inconsistent with his record testimony and
supports discrediting Blankstein and thus supports the crediting of Pollack's
version of the disputed events.
2 We find that the broad injunctive order recommended by the Adimnis-
trative Law Judge is not warranted in this case and that a narrow order is
sufficient to remedy the violation found. See Hickmort Foods, Inc., 242
NLRB 1357 (1979).
activities in attempting to organize an employee
health insurance program.
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence and state their positions, it
has been decided that we violated the law by dis-
charging Fanette Pollack in consequence of her pro-
tected, concerted activity. We have been ordered to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
The National Labor Relations Act gives all em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities.
All employees are free to exercise any or all of
these rights. All employees are also free to re-
frain from any or all such activities, except to the
extent that union membership may be required
by a collective-bargaining agreement as a condi-
tion of continued employment as permitted by
the proviso to Section 8(aX3) of the Act.
WE WILL NOT discharge or fail or refuse to
reinstate employees for engaging in protected,
concerted activities in attempting to organize an
employee health insurance program.
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 offer to reinstate Fanette Pollack to
her former job or, if that job no longer exists, to
a substantially equivalent position, without
prejudice to her seniority or other rights and
245 NLRB No. 122
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges, and WE WILL make her whole for any
loss of earnings, with interest, resulting from her
discharge.
EDWARD BLANKSTEIN INCORPORATED
DECISION
STATEMENT OF rHE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard before me in Newark, New Jersey, on October
20, and November 2 and 3, 1978. The underlying charges
herein were filed by Fanette Pollack, an individual, and
culminated in the issuance of a complaint and notice of
hearing on April 24, 1978, alleging principally that Edward
Blankstein Incorporated (herein also EBI or Respondent)
violated Section 8(a)(1) of the National Labor Relations
Act (herein the Act) by discharging said Fanette Pollack on
February 1, 1978, because she engaged in protected, con-
certed activities by attempting to organize an employee
health insurance program. On October 2, 1978, an amended
complaint and notice of hearing issued alleging, inter alia,
that Respondent further violated Section 8(a)(1) of the Act
by discharging Pollack for the additional reason that it be-
lieved that Pollack was attempting to organize a labor or-
ganization. Respondent filed an answer (amended at the
hearing) conceding, inter alia, jurisdictional facts but deny-
ing all allegations that it committed any unfair labor prac-
tices. According to Respondent, Pollack was not discharged
but rather had resigned from EBI. In any event, Respon-
dent contends that Pollack is not entitled to affirmative re-
lief on the basis that she was an independent contractor and
not an employee within the meaning of Section 2(3) of the
Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
find as follows:
FINDINGS OF FACT
1. JURISDICTION
Respondent, Edward Blankstein Incorporated, a New
Jersey corporation, is engaged in the business of providing
and performing financial aid consulting services and related
services. Respondent's principal office and place of business
is located in Princeton, New Jersey, its only facility in-
volved herein. In connection with the operations of the
aforenoted business, Respondent during the past 12 months
has provided and performed services valued in excess of
$500,000, of which services valued in excess of $50,000 were
provided outside the State of New Jersey. Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
Setting
EBI is a firm that functions as the student financial aid
office for approximately 150 vocational institutions in the
United States. Edward Blankstein is the president of the
company, and he and his wife are the principal owners.
Blankstein, as president of EBI, is also the director of stu-
dent financial aid for each of the aforementioned institu-
tions, and his responsibilities include the planning and
packaging of financial aid for students in conjunction with
federal governmental programs. The company employed
approximately 55 employees, half of them full time, includ-
ing accountants, field representatives, and need analysts.'
The part-time employees are mainly high school and col-
lege students engaged in clerical functions, loan collection.
and related tasks.
Since its incorporation approximately 6 years ago, EBI
has been represented by attorney Murray Reisner of Bos-
ton, Massachusetts, who also filed the original answer
herein. Blankstein testified that around the summer or fall
of 1976 he decided to utilize the services of someone with
legal training to assist him in processing problem applica-
tions and to work with him on special projects which did
not "necessarily require [a] tremendous amount of legal ex-
perience" and hired Karen Garfing, a law school graduate.
Garfing, who worked for EBI for approximately 14 months,
and her successors worked principally out of Respondent's
main office and place of business in Princeton, New Jersey,
but they had access to Reisner, who was retained as "out-
side" counsel. Garfing was replaced by Fanette Pollack (the
Charging Party and alleged discriminatee herein) and
Verice Mason, both law school graduates in September
1977.
EBI did not provide health insurance for its employees.
Pollack was interested in having a group insurance plan,
and soon after she began working for EBI she discussed this
subject with Blankstein's wife. In late November 1977 Pol-
lack also discussed health insurance coverage with Blank-
stein.
According to Pollack, Blankstein was unalterably op-
posed to all group insurance, including health insurance.
Pollack testified that Blankstein told her that group insur-
ance is a rip-off and employees could get better and cheaper
coverage on their own.
According to Blankstein, he was embarrassed that EBI
was a nonunion firm and he was receptive to unionization.
He told Pollack that he did not want her "hustling" em-
ployees into signing for coverage because he was fearful
that employees might construe her acts as actually emanat-
ing from him, much the same as a "sweetheart" arrange-
ment.
Pollack canvassed the employees and learned that a
number of them were interested in group health coverage
and then contacted the Blue Cross/Blue Shield representa-
tive. Pollack then sent a memorandum to each full-time
EBI employee on health plan coverage and obtained the
necessary personal data from interested employees to trans-
mit to Blue Cross/Blue Shield.
Blankstein and several of his employees, including Pol-
lack and Mason, attended congressional hearings in Wash-
ington, D.C., on a tuition tax-credit proposal during the
A need analysr analyzes data collected from each student for the purpose
of determining whether that student qualifies and is eligible for financial aid
and the extent of such aid under the various federal programs.
952
EDWARD BLANKSTEIN INCORPORATED
third week in January 1978. On Wednesday evening. Janu-
ary 18, 1978,2 at dinner, Pollack and Blankstein had a brief
exchange on health coverage and also discussed the events
of the day. With regard to health coverage. Blankstein re-
marked that his attorney, Ed Reisner, recommended that
he, Blankstein, provide, inter alia, major medical coverage
for employees at EBI. Pollack pointed out to Blankstein
that 80 percent of the employees are required to agree in
order for the company to participate in basic coverage for
Blue Cross/Blue Shield and he may not get 80 percent of'
the employees to agree to such a plan. That was substan-
tially all that was said about medical coverage until the
following day.
Blankstein and other EBI personnel attended the hear-
ings on tuition tax credit on the morning of January 19. In
the afternoon, around lunchtime, in the hallway in the lob-
by area of the Senate Office Building, Blankstein lashed out
at Pollack's coworker, Verice Mason, with profanity. Pol-
lack, who was in close proximity to them was making a
phone call at the time and when she heard them, immedi-
ately went over and asked "What's going on9 " Blankstein
yelled out at Pollack that she was "hustling him" and re-
ferred to the 80 percent provision for health coverage.
Blankstein, who was concededly angry and used profanity,
screamed out that he could fire them. Verice Mason coun-
tered, "You don't have to fire me, I quit." Pollack returned
to the hearings that afternoon and attended them the fol-
lowing day, January 20, as did Blankstein, but he stopped
talking to her.
While Blankstein substantially corroborated Pollack's ac-
count of the January 19 incident, he set forth the verbal
encounter from a somewhat different perspective. Accord-
ing to Blankstein, Mason had been pressing him for certain
papers which she had to take over to the Office of Educa-
tion, and he kept putting her off because he was more con-
cerned with the hearings. On January 19, immediately after
the morning session, as the EBI personnel walked out into
the lobby of the Senate Office Building, Mason again asked
Blankstein for the papers. Blankstein testified that he lost
his temper and used profanity. He testified that "[Mason]
was extremely upset because I do have a loud voice and I
was angry and I was cursing and we were in the United
States Senate lobby .... " According to Blankstein, when
Pollack intervened and called him a racist "That's when I
really lost my temper." In this regard Blankstein testified
that Pollack had criticized him for not providing, inter alia,
medical coverage for a black employee named Faith who
was unable to meet her medical bills. Blankstein acknowl-
edged that at some point during this spirited encounter,
while he was screaming and cursing, he intimated to Pol-
lack that she could only get 80 percent of the employees to
sign for health coverage by coercing them. According to
Blankstein "right after the screaming session" he decided
not to talk to Pollack. Thus he walked away and did not
talk to Pollack again until February 1, the day she last
worked for EBI.
The hearings were completed on Friday, January 20, and
on the following Monday, January 23. Pollack returned to
work at the Princeton, New Jersey. office. Blankstein was
2 All dates hereinafter refer to 1978. unless otherwise indicated
not in the Princeton office on that day and he did not assign
or leave work for Pollack to do. Pollack testified that her
work involved principally the processing of problem
B.E.O.G. applications.' According to Pollack. on January
23 the work she normally handled was virtually exhausted
and she had nothing to do, so she decided to process some
nonproblem B.E.O.G. applications. These applications
were normally processed by other EBI employees and were
not part of Pollack's responsibilities.
While Blankstein was in the Princeton office on a few
occasions during the week of January 23. he did not talk to
Pollack, nor did he assign any work to her. According to
Pollack. on one such occasion she went into his office and
gave him a little piece of paper on which she had written
"humorously" "How are you?" to which Blankstein made
no response.
On February I Blankstein called Pollack into his office
and, as testified to by Pollack, told her "People always ac-
cuse me of screaming so much, so I have taken the opposite
tact of silence, but apparently you haven't gotten the mes-
sage." He added "You were hustling me about the 80 per-
cent thing. and we obviously cannot continue to work to-
gether ... " He stated further. "I know you'll be moving
along soon now, this job was only meant to be a training
ground for young people anyhow." Blankstein pointed out
that Karen Garfing, Pollack's predecessor. stayed for about
a year and he assumed that she would leave EBI after a
shorter period. Pollack testified "It seemed like he was urg-
ing me [to do] something-so. I decided [tol submit my
resignation." She wrote on a piece of paper "I resign effec-
tive today," and gave it to Blankstein.
Blankstein conceded that he did not assign any work to
Pollack after January 19. However, he asserted that she had
work to do. With regard to his meeting with Pollack on
February 1, Blankstein testified that he told Pollack "Stay
as long as you want ... but in view of the circumstances ...
we're just not going to get along."
The General Counsel contends that Blankstein forced
Pollack into submitting her resignation and therefore was
(constructively) discharged. According to the General
Counsel, Blankstein took such action because Pollack ac-
tively solicited EBI employees to join a group health plan
and because he was fearful that she would also attempt to
attain union representation for these employees in the fu-
ture. Respondent on the other hand (as previously noted)
contends that Pollack resigned and in any event is not pro-
tected, mainly because she was not an employee within the
meaning of Section 2(3) of the Act but rather an indepen-
dent contractor. The disposition of these issues depends
largely on credibility. the resolution of which will be treated
immediately below.
Credibility
As noted above, Respondent, contrary to the General
Counsel, contends that Pollack's relationship with EBI was
as an independent contractor. In this regard the testimonies
3 B.E.O.G. represents Basic Education OpportunitS Grants These are led-
eral grants to students which are processed b EBI. Pollack was required.
inter alia. to check gosernmental regulations In resoling and pr-.'essing
problem B.E O.G. applications
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Blankstein and Pollack differ materially as to the nature
and scope of Pollack's responsibilities.
According to Blankstein, he indicated to Pollack before
she was hired that he would permit her to use EBI as a
vehicle to advance her career as a lawyer by soliciting and
representing clients while still employed by him. He assert-
edly encouraged Pollack to do so by making available to
her the EBI facilities including the office, telephones, and
secretarial pool. Blankstein further asserted that he indi-
cated to Pollack that her relationship with EBI was merely
temporary. According to Blankstein, he did not want a long
term commitment because such an arrangement would un-
fairly interfere with a lawyer in terms of career develop-
ment. On the credit side however, Blankstein explained that
by hiring lawyers for short periods of time, EBI "get[s] new
fresh minds being (sic) applied to old problems."
Pollack denied that Blankstein ever told her that she
could retain outside clients and at the same time continue
to work for him. She testified without contradiction that
during her period of employment at EBI she did not have
any clients. In this regard Blankstein admitted that he did
not have any knowledge whether Pollack received compen-
sation from any other source while she was employed by
EBI. Pollack also denied that she was told at the time she
got the job that it was a temporary position.
While I cautioned both Blankstein and Pollack to be
more responsive, I found Blankstein far more wanting in
this regard. Blankstein's responses were largely in narrative
form and often disjointed. On three such occasions he
stated that he did not intend to be evasive. I also found that
he was inconsistent and his responses lacked candor. For
example, Blankstein was asked by his counsel "Were the
number of days that [Pollack] had to work fixed or re-
quired?" and he responded in the negative. However, his
responses earlier to my questions tend to suggest that Pol-
lack was required to work a full week. The questions and
responses thereto are as follows:
JUDGE KAPLAN: Did you tell her she would have to
work five days?
BLANKSTEIN: Well, I don't think-that was sort of
assumed that she would be working the work week.
JUDGE KAPLAN: She would be working a full work
week?
BLANKSTEIN: It would be a full week, but there
would [be] some times when there [sic] would be run-
ning into the weekends. It would-
JUDGE KAPLAN: It would be at least the five work
days, Monday through Friday.
BLANKSTEIN: Yes. It was a general assumption. I
don't think it was really discussed. It was just the idea
that we needed as much of [her] time as we could get
in.
In addition to Blankstein's testimony, as noted above,
tending to establish Fanette Pollack's employment regular-
ity at EBI, it is also noted that Blankstein stated in his
affidavit, "Fanette was paid $300 per week for 40 hours
work." (G.C. Exh. 2, par. 3).
Given Blankstein's assertion (previously noted) on one
hand that Pollack was free to devote as much time as she
wanted to solicit and represent her own clients, and on the
other hand that she was expected or assumed to work for
EBI at least a full week (Monday through Friday), I find
that such an incongruous variance reflects adversely on his
credibility.
Another area of conflict related to events following the
spirited incident of January 19. According to Pollack, when
she returned to the Princeton office on January 23, after
having spent most of the previous week attending the hear-
ings in Washington, D.C., she did not have any work to do.
She decided to process nonproblems E.B.O.G. applications
which were normally handled by other employees. Pollack
testified that on those occasions when Blankstein worked at
the Princeton office after January 23 he "totally ignored"
her and did not assign any work to her.
Blankstein on the other hand asserted that during the
above-cited time frame, Pollack had work to do. While
Bernstein refused to concede that he completely ignored
Pollack, he acknowledged that he stopped talking to her.
Thus he testified "I did not say anything to her from the
time that I walked away from the screaming session (Janu-
ary 19) until that day. February Ist." It is noted that Blank-
stein's affidavit in this regard closely parallels Pollack's tes-
timony. After describing therein the January 19 incident,
Blankstein continued as follows:
I then completely ignored Fanette for several weeks
hoping that she would get the message and quit. I tried
that fbr two weeks but it didn't work. I called her in on
February 1, 1978 and told her that we didn't get along
and that she should resign. I told her to take her time
to look for another position. She then quit her position.
(G.C. Exh. 2, par. 8, emphasis supplied.]
The foregoing clearly supports Pollack's account of
Blankstein's posture toward her from January 19 to Febru-
ary 1, the day she resigned. With regard to the extent of
Pollack's caseload during this time frame, I again credit
Pollack over Blankstein. The record discloses that Blank-
stein's wife, who also managed the Princeton office, was not
called to provide corroborative testimony for her husband.
Noting that Mrs. Blankstein is also a principal owner of
EBI, I conclude that her testimony would not have been
favorable to Respondent had she been called as a witness.
In any event, on the basis of plausibility, consistency, re-
sponsiveness, and totality of Blankstein's testimony, I find
that he was not a reliable witness. While, as previously
noted, I also had occasion to caution Pollack to be more
responsive, I find that on the basis of demeanor, general
consistency, and noting particularly that her testimony was
substantially corroborated by Blankstein's affidavit, that
she was a credible witness.
In his brief, counsel for Respondent attempted to miti-
gate the impact of Blankstein's admissions against interest
contained in his affidavit. He asserted that Blankstein was
not offered the opportunity to have counsel present and he
apparently believed that the Board agent was merely taking
notes. He noted that "while Blankstein may have been care-
less or even foolish in his conversation with Cestare (Board
attorney), he (Blankstein) testified he did not believe or
know he was engaged in giving the final form of an affida-
vit, and believed he would have an additional opportunity
to correct his statement for accuracy."
Blankstein's responses to my questions and a reading of
his affidavit convince me that he knew that he was provid-
954
EDWARD BLANKSTEIN INCORPORATED
ing the Board agent an affidavit accurately reflecting his
version of the events. Thus, the statement contains the jurat
and is otherwise clearly in affidavit form. While Blankstein
testified that he had some difficulty reading the affidavit,
the Board agent also read the statement to him. It is noted
that the four-page statement contains no fewer than 17
changes or additions, each of which was initialed by Blank-
stein. According to Blankstein, while the content of the
statement is "substantially" accurate, it is not a "verbatim"
account of what he told the Board agent. Insofar as he
assertedly did not have the opportunity to have counsel, it
is noted that Respondent does not contend that Blankstein
ever requested counsel to be present. In any event, the
statement was signed and sworn to March 30, 1978, over 6
months before the instant trial opened. At no time did
Blankstein make an effort to further correct his affidavit. In
these circumstances, and on the basis of the demeanor and
the totality of Blankstein's testimony, I find not only that he
knew that the document was an affidavit but also that the
affidavit is a more reliable indicator of what transpired than
Blankstein's testimony at the trial.' In sum, I credit Pollack
over Blankstein in all material areas where their testimonies
conflict.
Pollack's Employment Status
As noted above, Respondent contends that Pollack was
not an employee within the meaning of the Act but rather
an independent contractor and as such is exempt from pro-
tection under the Act.
The credited testimony discloses that in the fall of 1976
Blankstein decided to create an "inside law department" to
assist him in processing "problem" student loan applica-
tions and related work which he testified "did not necessar-
ily require [a] tremendous amount of legal experience." In
furtherance thereof he hired Karen Garfing, a law school
graduate. Garfing, who worked for EBI for approximately
14 months, interviewed and recommended Pollack and Ma-
son, both law school graduates, to replace her. Most of the
"key" or "critical" legal work continued to be handled by
Blankstein's "outside attorney," Murray Reisner, who has
represented EBI since its inception. The work of Pollack
and Mason in substantial measure was reviewed by Reis-
ner.
Pollack and Mason commenced working for EBI in Sep-
tember 1977. They were paid by check every week in the
amount of $300 without taxes or other deductions taken
therefrom, and their names did not appear in EBI's payroll.
Pollack credibly testified that Blankstein gave her and Ma-
son the option to have deductions withheld, and they
elected to receive the full $300 amount. Pollack also cred-
ibly testified without contradiction that after she and Ma-
son had worked at EBI for about 3 or 4 weeks, Elizabeth
Moore, an EBI accountant, asked them to submit bills de-
scribing the work they performed each week as had their
predecessor, Karen Garfing. Pollack received a check for
$300 each week without regard to whether she submitted
the bill.
Se. generally, Alvin J. Barr and Co.. Inc., 236 NLRB 242 (1978).
The record discloses that Pollack and Mason shared an
office at the Princeton facility wherefrom substantially all
their work was performed. In this regard, the record reveals
that Pollack only on rare occasions and for brief periods of
time (twice in Washington. D.C.. and once or twice in New
York) had to work outside of the Princeton office. While the
normal workday for other EBI employees was from 9 a.m.
to 5 p.m., Pollack was permitted to report for work around
9:30 a.m. because she commuted from New York City but
left work around 5:15 p.m. None of the employees punched
a timeclock.
In determining whether an individual is an employee or
independent contractor, the Board has traditionally applied
the common law, right-of-control test.' There is an em-
ployer-employee relationship where the employer reserves
the right of control not only as to the ends to be achieved
but also as to the means to achieve such ends. The Board
has noted that application of the test is not a "perfunctory
exercise" but demands a balancing of all the evidence rel-
evant to the relationship.,
Counsel for Respondent averred in his brief that Pollack
was hired as an attorney to do an attorney's work and in
this capacity "Respondent exercised vero little control over
her." (Emphasis added). Thus he argues that "[Pollack's]
work product was her own, drawn from her expertise and
skills and contained her own conclusions." According to
counsel for Respondent, Pollack was free to determine in
"substantial measure" when and whether to work at Re-
spondent's office. She was assertedly entitled to and invited
to develop her own clients, and in so doing Blankstein (gen-
erously) made his Princeton office and secretarial pool
available to her. He notes further that Pollack was not car-
ried on EBI's payroll and that no taxes or other deductions
were taken out of her salary.
Many of the factors relied on by counsel for Respondent
are predicated solely on Blankstein's testimony. As I have
found Blankstein not to be a reliable witness, I further find
that these factors are not supported by the credible evi-
dence. For example, Pollack's denial that Blankstein told
her that she could develop her own clients while working
for EBI is credited over Blankstein's assertion that he made
such an offer to her. In this regard, it is noted, inter alia,
that the record is devoid of evidence tending to show that
Pollack derived any income during her term of employment
from any source other than EBI.
With regard to counsel for Respondent's assertion that
Pollack was hired as an attorney to do an attorney's work, I
find that this too is not supported by the credible evidence.
Thus, Blankstein testified that at the time he hired Pollack
as a law school graduate, he did not know whether she had
taken the bar examination. Pollack testified credibly and
without contradiction that she was not admitted to the bar
until February 14, 1978, after she had stopped working for
EBI. In any event, a finding that Pollack worked for EBI as
NL.R.B v United Insurance Conmpany 390 US. 254 (1968); Prentiss &
Carlisle Company, Inc., 230 NLRB 373, 374, (1977). The Aetna Freight Lines.
Incorporated, 194 NLRB 740, fn. 2 (1971): National Freight, Inc., 146 NLRB
144, 146 (1964).
6 Dearon, Inc., 187 NLRB 780(1971): Prentiss & Carlisle Co., supra at 374:
Aetna Freight Lines, Inc., upra.
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a lawyer or legal adviser does not by itself preclude her
from coverage under the Act.7
The credible evidence, contrary to Respondent's asser-
tions, discloses that Blankstein exercised substantial control
with regard to all aspects of Pollack's work product. Thus,
Blankstein admitted that Pollack had "all kinds of dead-
lines" and he spoke with her "frequently." He acknowl-
edged that it was not practical for her to work out of her
home, and it was "assumed" that she would be at the
Princeton office every day. The record discloses that Pol-
lack worked outside the Princeton office only on a handful
of brief occasions during her approximately 6 months of
employment at EBI. These factors persuasively establish
Blankstein's influence and presence vis-a-vis Pollack's work
product. Most significant however, is the extent of review
he maintained over her work. Thus, Blankstein stated in his
affidavit in pertinent part as follows:
On legal matters . . . Murray Reisner, my attorney
would review the work. I would also check their work
[Pollack and Mason] many times in conjunction with
Reisner. I would call Reisner on the telephone and
confer with him as to the work they performed.
For the work Pollack performed at EBI, she received a
$300 check every week. While she was not carried on EBI's
payroll and elected not to have taxes or other deductions
taken out of her salary, such factors are not decisive to the
issue at hand.' Of more significance herein is that Pollack
worked at Respondent's Princeton office nearly every day
and received a salary check every week in the amount of
$300 for such services which was not conditioned on the
amount of work she performed. Further, the credited testi-
mony significantly discloses that Blankstein was in close
and frequent contact with Pollack, and her work was moni-
tored and carefully reviewed by him, particularly in key
legal matters when he also consulted with his longtime at-
torney, Murray Reisner. In these circumstances, and on its
basis of the entire record, I find that the evidence is strong
and convincing that Pollack at all times material herein was
an employee within the meaning of the Act and not an
independent contractor.
Protected Concerted Activity
I. Group health insurance
The record discloses that Respondent did not provide
health insurance for its employees. Pollack demonstrated
an early interest in group health insurance, and Respondent
admittedly had knowledge thereof. Blankstein made it
abundantly clear that he opposed all forms of insurance. In
particular, Blankstein scoffed at group insurance referring
to it as a ripoff and asserting that employees could get bet-
ter and cheaper coverage on their own. Moveover he ex-
pressed the opinion that the employees would rather have a
salary increase than experience payroll deductions for in-
' See, e.g., Neighborhood Legal Services, Inc., 236 NLRB 1269 (1978); Le-
gal Services for the Elderly Poor, 236 NLRB 485 (1978); Wayne Countv
Neighborhood Legal Services, Inc., 229 NLRB 1023 (1977).
'Herald Star, Canton Division, 227 NLRB 505, 507 (1976); American
Broadcasting Co., etal., 117 NLRB 13, 18 (1957).
surance coverage. While Blankstein admitted that Pollack
told him that she was not contemplating an employer con-
tributory plan, his opposition to her efforts to secure group
insurance persisted. He did, however, allow Pollack to con-
tact Blue Cross/Blue Shield but cautioned her not to pres-
sure employees into signing for coverage.
Notwithstanding Blankstein's negative utterances on
group health insurance, Pollack canvassed the full-time em-
ployees and learned that many of them were interested in a
group plan. Blankstein admitted that Pollack told him the
results of her findings and that she had contacted insurance
companies.
According to Pollack, she learned from the Blue Cross/
Blue Shield representative that 80 percent of the employees
had to sign in order for them to qualify for group coverage.
Pollack went around the Princeton facility during working
hours to the full-time employees who were interested in
group coverage and filled out the forms she had received
from Blue Cross/Blue Shield with personnel information
supplied by these employees. She also sent a memorandum
to each of the full-time employees on group insurance cov-
erage. Pollack engaged in the aforenoted activities in late
November and December 1977.
As noted previously, Pollack, Mason, and other EBI per-
sonnel attended congressional hearings on tuition tax credit
during the third week in January 1978. It is undisputed that
at dinner on January 18 Blankstein mentioned to Pollack
that Edward Reisner, his attorney, recommended that EBI
provide medical coverage. Pollack in turn pointed out that
80 percent of the employees had to sign up in order for the
company to participate in basic coverage under Blue Cross/
Blue Shield and indicated to Blankstein that he might have
difficulties getting 80 percent of the employees to agree.
The following day, January 19, Blankstein became en-
raged first with Mason over an independent work-related
matter and a moment later with Pollack when she inter-
vened. Blankstein admitted that he screamed at them, used
profanity, and described himself as angry.
The record discloses that Blankstein accused Pollack of
applying coercion as the only way she could generate 80
percent approval for health coverage. Blankstein testified
that he was alluding to Pollack's reference to 80 percent the
previous evening. According to Blankstein, he was upset
with Pollack when she first mentioned the 80-percent figure
but he saw no point in discussing it further at that time.
Blankstein shouted at Mason and Pollack on January 19
that he could fire both of them. While Mason quit on the
spot, Pollack continued to work for EBI for the next few
weeks until Blankstein so undermined and demeaned her
employment status that she was compelled to resign.
Blankstein decided on January 19 that he would com-
pletely ignore Pollack by not talking to her and not giving
her any more assignments with the expectation that she too
(as had Mason) would quit. However, as Pollack continued
to work for the next few weeks, Blankstein decided a more
direct approach was in order. He called Pollack into his
office on February 1, told her that they were not getting
along. and asked her to resign. In these circumstances the
invitation to resign was tantamount to a discharge.
Blankstein's negative posture in terms of his relationship
toward Pollack from January 19 until she resigned is clearly
956
EDWARD BLANKSTEIN INCORPORATED
traceable to her efforts to obtain group health protection for
herself and other employees. As noted' heretofore, Blank-
stein was unalterably opposed to all forms of insurance.
This is true notwithstanding the fact that Pollack admit-
tedly told Blankstein that her plan would not cost him any-
thing. Blankstein further conceded that he became upset
with Pollack the evening of January 18 when she referred to
"80 percent" as a condition for group coverage. Blankstein
finally erupted the following day when he angrily accused
Pollack of coercing employees into signing for coverage and
threatened to fire her for these activities. While the actual
discharge did not occur at that time, the dye was cast. Thus
Blankstein testified "I did not say anything to her from the
time I walked away from the screaming session (January
19) until that day (Pollack's resignation), February 1."
Blankstein, however, was more explicit in his affidavit
wherein he stated in pertinent part as follows:
I then completely ignored Fanette for several weeks
hoping that she would get the message and quit. I tried
for 2 weeks but it didn't work. I called her in on Febru-
ary 1, 1978 and told her that we didn't get along and
she should resign. She then quit her position.' (See
G.C. Exh. 2, par. 8).
While Pollack was principally interested in obtaining in-
surance for herself, she credibly testified without contradic-
tion that many of the other full-time employees shared her
interest and responded favorably to her exhortations that
they act concertedly to qualify under a group plan.' In
these circumstances, and on the basis of the entire record, I
find that Pollack and other individuals by virtue of their
status as employees acted concertedly for their mutual aid
and protection." Accordingly, I find that Respondent, by
constructively discharging Pollack on February 1, violated
Section 8(aXi) of the Act.
2. Union activity
Counsel for the General Counsel contends with prima
facie justification that Respondent additionally violated
Section 8(aX1) by terminating Pollack because it believed
that she was attempting to organize a union. Thus Blank-
stein stated in his affidavit, "Another reason I fired her (Pol-
lack) was because if she organized a union, it would give
the appearance of a sweetheart union." (G.C. Exh. 2, par.
9).
'Counsel for Respondent contends that Blankstein lost confidence in Pol-
lack not only because she attempted to structure a health plan, but also
because Blankstein assertedly learned on January 23 that Pollack promoted
a different position than he had on the tax tuition credit bill. The preponder-
ance of the credible evidence, however, convinces me that Pollack's position
on the tax tuition credit bill had nothing to do with her demise. Rather, I find
on the basis of the totality of the record that the conclusion is inescapable
that Blankstein had determined on January 19 that he was going to get rid of
Pollack. Blankstein himself summed up the events of January 19 by saying
"That was the whole ball game."
0See Air Survey Corp., 229 NLRB 1064 (1977), wherein the Board noted.
lA]n individual's actions may be considered to be concerted in nature if
they relate to conditions of employment that are matters of mutual concern
to the affected employees."
" See, generally, Rinke Pontiac Co., 216 NLRB 239. 241-242 (1975); Air
Survey Corp., spra.
If Blankstein is held to the letter of his statement, I would
find that he violated the Act as alleged. This is so because it
would amount to an unlawful intrusion with the rights of
employees under Section 7 "to self-organization, [and] to
form, join, or assist labor organizations." The absence of an
antiunion bias does not necessarily defeat these rights."
However, a careful reading of this record convinces me that
Blankstein was determined to get rid of Pollack solely be-
cause of her efforts to structure a group health insurance
plan. I have fully set forth these reasons previously.
It appears that Blankstein's reference in his affidavit to
"sweetheart union" reflected his concern that employees
might perceive Pollack's efforts as a member of his legal
staff to sign them up with "suspicion" viewing it as a
"sweetheart" arrangement. Moreover, I cannot accept the
statement in the affidavit at face value for the additional
reason that Blankstein had no basis for concluding that Pol-
lack would organize a "sweetheart" union, and he knew it.
On the other hand, there is substantial and persuasive
evidence tending to support the conclusion that "union ac-
tivity" was not a factor in Pollack's discharge. Thus, Pol-
lack testified that Blankstein told her on more than one
occasion that he was receptive to the unionization of his
employees. Further, he indicated to her that given his politi-
cal and philosophical leanings he was embarrassed that his
employees were not represented by a union. It is further
noted that neither Pollack nor any other EBI employee en-
gaged in union activity at any time material herein.
Having previously determined that Blankstein termi-
nated Pollack solely because she engaged in protected, con-
certed activities, namely, promoting group health insurance
coverage for herself and other employees, I find that the
General Counsel's further allegation that she was also dis-
charged because Blankstein believed that she was attempt-
ing to organize a union is without merit. Accordingly, I
shall dismiss this allegation.
IIl. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section I1,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has violated Section 8(a)( ) of the Act by
constructively discharging Fanette Pollack for engaging in
protected, concerted activities in attempting to organize an
employee health insurance program.
3. The evidence is insufficient to establish that Respon-
dent discharged Pollack in violation of Section 8(a)(1) of
the Act because it believed that Fanette Pollack was at-
tempting to organize a labor organization.
"'See NL.R. B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964).
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent unlawfully dis-
charged employee Fanette Pollack because of her pro-
tected, concerted activity in violation of Section 8(a)(1) of
the Act, I shall recommend that Respondent be ordered to
offer her full and immediate reinstatement to her former or
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered by reason of
her unlawful discharge, by payment to her of a sum of
money equal to that which she normally would have earned
from the date of discharge to the date of a valid offer of
reinstatement. Backpay shall be computed according to the
Board's policy set forth in F. W. Woolworth Company, 90
NLRB 289 (1950). Payroll and other records in possession
of Respondent are to be made available to the Board, or its
agents, to assist in such computation. Interest on backpay
shall be computed in accordance with Florida Steel Corpo-
ration, 231 NLRB 651 (1977).'
In view of the serious unfair labor practices found herein,
I shall further recommend that Respondent be ordered to
cease and desist from "in any other manner," infringing
upon the rights guaranteed employees in Section 7 of the
Act. See Skrl Die Casting, Inc., 222 NLRB 85, fn. 1 (1976).
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER"4
The Respondent, Edward Blankstein Incorporated,
3See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
Princeton, New Jersey, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Discharging employees or failing or refusing to rein-
state them in consequence of their participation in an em-
ployee health insurance program or other protected con-
certed activity for the purpose of mutual aid and
protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Fanette Pollack immediate and full reinstate-
ment to her former job or, if the job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports, and all other records necessary to
ascertain the backpay due under the terms of this Order.
(c) Post at its Princeton, New Jersey, facility copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 22, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order what steps
have been taken to comply herewith.
15 In the event that this Order is enforced by a Judgment of the Unted
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
958