“An analysis of the factual record of this case in light of the governing authority reveals that the musicians here are employees, subject to Apollo’s right of control, without opportunity for entrepreneurial gain or loss in their relationship with the Apollo, and are not independent contractors…
“This case involves a unit of professional musicians. As is evident from the factual record, the music industry and the work relationships of musicians are unique and cannot be forced squarely into the analytical precedents arising in more traditional industries – factories or truck driving, for example. Rather, under the Board’s express directive,…different factors are to be weighted differently according to the individual facts and circumstances presented. Therefore, the Board here must look to precedents established in cases involving the employment relationships of musicians.
“In American Federation of Musicians (Royal Palm Theater)…the Board determined that a group of musicians hired on a one-time basis to tape-record a musical score to be used in a theater’s production were employees of the theater, not independent contractors, despite the evidence that the musicians were:
- highly skilled and not in need of significant direction
- hired not by the theater but through a contractor of the theater
- hired for only a few hours on a one-time basis
- paid not by the theater but by the contractor
- not subject to withholding
- exempt from fringe benefits.
“In reaching its determination, the Board was especially persuaded by the employer representative’s:
- control over the number and type of instruments to be used
- selection of the time and place for the recording session
- selection of the music to be played
- direction of how the music was to be played
- decision of how much rehearsal time was necessary before the score was recorded
- decision regarding seating arrangements of musicians
- decision regarding the time when breaks were to be taken.
“These factors convinced the Board that the employer had reserved its right to control over the manner and means of making the recording…
“The [Apollo’s] reservation (let alone exercise) of the right to direct and control the rehearsals and performance on ‘Amateur Night’ is an overriding indicia of the musicians’ employee status. The Apollo management directs and controls a tightly regimented rehearsal and performance schedule; requires the band to play the music provided and selected by the competing amateurs; determines how much rehearsal is necessary; controls the order of the rehearsals and shows, and the time for breaks and intermissions; requires that rehearsals be held at the Apollo Theater; retains veto power over the musicians’ choice of substitutes; dictates the placement of instruments and musicians on stage; ‘suggests’ promotional clothing and, for a time, a coordinated costume; prohibits the musicians from performing a Coca-Cola sponsor jingle; issues employee identification cards to band members for security purposes; deprives the musicians of some discretion in their choice of an opening number by imposing its own choice of vocalist on the band; enforces disciplinary policies on the band members concerning tardiness, eating on stage, and guests in the theater; provides and deprives the band members of dressing room space at its own convenience; and effectively dictates the size and composition of the band…
“The musicians’ long-standing regular job at the Apollo’s Wednesday night ‘Amateur Night’ is a potent indicia of their employee status…
“The record is devoid of even a shred of evidence to suggest that the musicians had any role in negotiating or determining their rate and method of pay. To the contrary, the terms of payment were clearly imposed unilaterally by the Apollo…
“For all of the foregoing reasons, the Regional Director must find that the Apollo musicians are employees of the Apollo and should forthwith direct an election among the musicians.”
Meyer, Suozzi, English and Klein
Local 802 Legal Counsel
“[The] primary issue to be decided in this matter is whether the petitioned-for musicians are employees covered by the [law], or independent contractors not encompassed by the [law’s] provisions and protections. In determining the distinction between an employee and an independent contractor…the Board applies the common-law agency test and considers all the incidents of the individual’s relationship to the employing entity…
“Applying the common law test and several [other] factors to the instant case, I concluded that the musicians are employees and not independent contractors…
“Based on the foregoing, I find that the following employees constitute an appropriate unit for purposes of collective bargaining within the meaning of [the law]: Included: All full-time and regular part-time musicians employed by the Employer.”
Celeste J. Mattina
Regional Director, Region 2
National Labor Relations Board
All of our victories are important – but this one was especially meaningful, since it constitutes such a substantial advance in our fight to demonstrate employee status for musicians and, thereby, obtain for them the advantages of a union contract and statutory payroll benefits.
We have been rolling this particular rock up the hill for nearly 20 years now. While it has occasionally rolled slightly back down, unlike Sisyphus, we seem to be making headway.
First, of course, we had to convince our own members that payroll status was better than independent contractor/1099 status: that often the dollars you don’t put directly in your pocket -whether for unemployment benefits, worker’s compensation or for pension and health insurance – are more valuable dollars. Then we had the long battle with employers, for whom this is usually a bottom-line item. Employers who meet their legal payroll obligations pay approximately 20 percent more than those who manage to duck these responsibilities.
In attempting to avoid these costs, employers have long claimed that the musicians they engage are independent contractors and, therefore, not subject to union organizing efforts. Attorney Weekly’s argument, cited above, expresses our position: that even though our employment may be sporadic, and even though we may work for several employers, those employers’ right to control the workplace is maintained and is usually exercised, and that this control of the workplace – together with some of the other factors mentioned in her brief – defines musicians as employees.
The Apollo is a perfect example of this. It is a once-a-week engagement in which the right to control the workplace has been exercised in full, and in which musicians have had no say in determining compensation, were subject to having substitutes vetoed, and may have been disciplined for lateness. The fact that the musicians had always been paid on a 1099 basis – and had, in fact, been required to sign statements purporting to admit they were independent contractors – was not found to be determinative in the NLRB’s decision.
There’s a lot of credit to be given here. First and foremost, it is due to the musicians – Ray Chew, Ralph Rolle, Bobby Douglas, and Artie Reynolds – who were out front throughout the process, even though they had no job security except that derived from their talent and skills. Credit is also due to Tim Dubnau and the entire New Organizing Department- Mikael Elsila, Joe Eisman and Chris Seymour (who has since moved on and will be missed) – who strategically and tactically did not miss a step. And, finally, plaudits to legal counsel Jennifer Weekly, who advised the organizers, argued the case before the NLRB and submitted the well-thought-out, closely argued closing brief that was partially quoted at the beginning of this report. Ten thousand thanks to all of you.
Correction: Last month’s report misidentified the Washington, D.C., local. Its correct local number is 161-710. My apologies.