The National Labor Relations Board has found that the four musicians who perform each week at the Apollo Theatre are employees and not independent contractors, and are therefore entitled to the benefits of a union contract. Unless management appeals the ruling, an election should be held by the end of November.
Ray Chew, Bobby Douglas, Artie Reynolds and Ralph Rolle are the house quartet who perform on Wednesdays for Amateur Night at the Apollo. The band has never received a raise, pension or health benefits. Chew, the band’s leader and co-writer of the weekly theme music, has been there for nine years.
“All the spirits that have graced the stage of the Apollo would be applauding this decision,” said Chew. “This lays the groundwork for the community to know how musicians are treated.”
Douglas, the keyboard player, said the decision shows that “it is important to fight for what you believe in. Unions work, agreements work, contracts work, the system works – and subsequently, with all of this working together, we all work!”
Last February the union wrote Ossie Davis, chair of the Apollo’s Board of Directors, advising him that the musicians had chosen Local 802 as their representative and asking for recognition. Apollo management, led by then-Executive Director Grace Blake, began a six-month campaign to thwart this. Terming the band members “independent contractors,” Blake and attorney Darrel Gay (whose firm specializes in union avoidance) argued in Labor Board hearings that the musicians do not have the right to unionize.
But Celeste J. Mattina, newly appointed director of NLRB Region 2, ruled in October that Chew, Douglas, Reynolds and Rolle are employees of the Apollo. She noted that the musicians perform work that is part of the Apollo’s regular business, and are under the theatre’s direct control. She pointed out that the Apollo’s producer controls the band’s rehearsal period, provides many of the instruments, and has required the band to wear certain clothing. Finally, Mattina drew attention to the fact that the musicians are not able to negotiate their own fee – they are paid regularly by the Apollo, and it is the Apollo that has true “entrepreneurial control.”
TESTS FOR EMPLOYEE STATUS
Taken together, these factors indicate that Ray Chew and the Crew are employees, not independent contractors – a significant finding since, under labor law, employees are entitled to form a union while independent contractors are not. The basic issue involves the degree of control an employer exerts over a worker.
The battle to prevent workers from being misclassified as independent contractors has been a major priority for Local 802 and other members of Unions for the Performing Arts for many years, and has now become a significant issue in virtually every industry. The building trades, unions representing the city’s limousine drivers, and models have testified in Albany alongside UPA, in efforts to enact legislation that would establish fair guidelines for determining who is an independent contractor.
In his final brief Gay, the Apollo’s attorney, tried to have it both ways. He asked the Labor Board to deny the band’s right to unionize. But he also argued that, even if the Board found that the musicians were entitled to a union, Ray Chew should be excluded from the unit because he is a supervisor, and thus barred from joining a union. However, Mattina found that the Apollo had not established that Chew is a supervisor, and therefore he will be considered part of the unit. NLRB guidelines call for an election within 30 days of the director’s decision.
A SIGNIFICANT VICTORY
“This victory is important to me as well as to all musicians and performers everywhere, because it’s another small victory in the ongoing struggle to have performers recognized as professionals in a business that should be run as any other business,” said bassist Reynolds. “We’re not just picking up pocket change after school for snack money – we are living, working professionals entitled to all the benefits, pension plans and unemployment insurance provided in any other business. We deserve the right to prepare for our future and to provide for our families, the same as any other corporate employee. No more ‘scraps from the big house’ mentality!”
The Labor Board ruling culminated an intense, visible campaign for union recognition waged by the musicians, beginning at the theatre itself. In March they stood in front of the Amateur Night ticket line with organizers and urged ticket holders to call the Apollo – then and there – with their cell phones. Organizers also set up a table in the union lobby and asked members to make calls and send in post cards of support. A petition with more than 500 names was ultimately mailed to every member of the Apollo’s Board of Directors.
The musicians were represented by Local 802 attorneys Jennifer Weekley, John Byington and Bob Archer. “I find it encouraging that the NLRB in Region 2 has shown that it will not be fooled by superficial employer attempts to deny performing artists their right to organize, but will closely scrutinize the substance of the artists’ relationship with the employer to uphold their rights,” Weekley said.