As hearings dragged on this summer at the National Labor Relations Board, the Apollo musicians presented solid evidence that they are clearly employees – and not, as the Apollo claims, independent contractors. If the Labor Board agrees with Local 802, the musicians will have the right to vote on joining the union and negotiating a union contract.

The four musicians have been playing for Amateur Night at the Apollo for the last eight years, and have received no raises and no benefits in that time. Early this year they approached Local 802 for help in organizing. (See May and July/August Allegros.)

The hearings have occupied four days so far in July and August. Apollo attorney Darrell Gay has been demonstrating his expertise in “union avoidance,” as his law directory bio calls it. (At one point, one of his more ridiculous questions prompted Labor Board Hearing Officer Olga Torres to exclaim “Oh, come on!”) But he hasn’t been able to prevent the musicians from demonstrating in testimony that the Apollo controls their work as employees. Specifically:

• The Apollo decided on the initial composition of the band, which has since come to be called Ray Chew & the Crew.
• The Apollo has blocked the musicians’ efforts to add additional instrumentation and has instructed them not to use certain substitutes.
• An Apollo staffer tells the musicians when they can stop rehearsing and extends rehearsals at her discretion.
• The theatre deducts workers’ compensation from the musicians’ paychecks – a policy that management instituted without consulting the musicians and over their objections.
• The Apollo decides almost everything about the show – from the order of the songs to the positioning of the musicians on the stage, to the clothes that they wear and the inclusion or elimination of an advertising jingle.

Although Ray and the Crew hope to prevail, 802’s attorneys advise that victory is not assured. Labor law is weak, and Apollo management has been able to manipulate the way it pays musicians to create the illusion that they are not employees. For example, the theatre requires musicians to sign a weekly invoice that gives the impression they are independent contractors. If musicians do not sign the invoice, they are not paid. The theatre pays the musicians on 1099s and doesn’t withhold taxes.

Management is also disclaiming its power to hire and fire musicians, saying that the band has control over this.

The Apollo’s lawyer also claims that the fact that Ray and the Crew occasionally use subs illustrates that they are independent contractors. When the union tried to present testimony showing that using subs is industry practice, the theatre’s attorney objected – undoubtedly concerned that the union would make a compelling argument. The Labor Board sustained the Apollo’s objection, thus preventing 802 from arguing that the band is simply following the industry practice.