Comedy Store, The

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1422 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Comedy Store and American Federation of Co-
medians and American Guild of Variety Artists,
Associated Actors and Artists of America,
AFL-CIO. Cases 31-CA-9219 and 31-CA-
10067
December 16, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On April 21, 1982, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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.
Respondent also excepts to the Administrative Law Judge's finding
that its owner, Shore, controls the "manner and means" of the perfor-
mances given by comedians at Respondent's nightclubs in Los Angeles.
We find merit in this exception. The record shows that Shore, on occa-
sion, has suggested to some comedians that they modify the content
and/or presentation of their acts. The comedians perceive that Shore's
"good graces" and positive opinion of their acts will increase their
chance of achieving a successful career in comedy and, therefore, they
give Shore's advice serious consideration as they develop their acts. Nev-
ertheless, the record reveals that the comedians determine the content,
order, and style of their presentations and, in fact, do not always follow
Shore's advice. The comedians also may vary their acts according to the
length of their allotted performance time, audience reaction, and the con-
tent of the preceding comedians' routines. Moreover, the comedians pro-
vide their own props, costumes, and music. Based on all of the above, we
find that while Shore does have an impact, through her criticism, on the
comedians' performances, her influence is not that of an employer speci-
fying the details of its employees' work. Rather, the weight accorded to
Shore's suggestions is attributable to her status and position as a "well-
connected" impressario in the comedy entertainment field. Thus, we find
that the comedians, not Respondent, control the manner and means of
their performances. See Strand Art Theatre. Inc. 184 NLRB 667 (1970),
and American Guild of Musical Artist. AFL-CIO, etc. (National Symphony
Orchestra Assn.), 157 NLRB 735 (1966).
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge:
Upon a charge filed on July 24, 1979, by American Fed-
eration of Comedians (AFC), and duly served, the Gen-
eral Counsel of the National Labor Relations Board
(General Counsel) caused a complaint and notice of
hearing, dated on December 31, 1979, to be issued and
duly served directed to the Comedy Store, designated as
Respondent in this Decision. Thereafter, following a
charge filed on May 29, 1980, by America Guild of Vari-
ety Artists, Associated Actors and Artists of America,
AFL-CIO (AGVA), which was likewise duly served,
General Counsel caused an amended consolidated com-
plaint, dated on July 16, 1980, and bottomed upon both
charges, to be promulgated and served upon the parties
concerned. Subsequently, on September 17, 1980, a
second amended consolidated complaint was issued and
served. Therein, Respondent was charged with the com-
mission of various unfair labor practices within the mean-
ing of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended. Respondent's answers, duly
filed with respect to General Counsel's successive com-
plaints, reflected concessions with respect to certain fac-
tual allegations therein, but denied the commission of
unfair labor practices.
Pursuant to notice, a hearing with respect to these
consolidated matters was conducted on various dates be-
tween September 30, 1980, and November 7, 1980, in
Los Angeles, California, before me. General Counsel and
Respondent were represented by counsel.
(On various occasions, while the hearing was in prog-
ress, John A. Lawrence, AFC's counsel, and Jon Russo,
AGVA's business representative, noted special appear-
ances on behalf of their respective clients or principals,
primarily in connection with record discussions related
to subpoena duces tecum compliance matters.)
Each party was afforded a full opportunity thereafter
to be heard, to examine and cross-examine witnesses, and
to introduce evidence with respect to pertinent matters.
During the hearing, General Counsel's motion to amend
his second amended consolidated complaint, with respect
to certain particular matters set forth therein, was grant-
ed; Respondent's denials on the record with respect
thereto were noted.
Since the hearing's close, comprehensive, well-re-
searched, and helpful briefs have been filed on behalf of
General Counsel and Respondent; these briefs have been
duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following factual determinations.
1. JURISDICTION
Respondent functions as a California corporation, with
a headquarters office located within its principal Los An-
geles, California, place of business, where comedy enter-
tainment programs are provided for public patronage.
265 NLRB No. 183
1422
THE COMEDY STORE
The record herein reflects Respondent's concession that
it maintains a business enterprise. In the course of Re-
spondent's business operations, it derives gross revenues
in excess of $500,000 yearly. The record further reflects
Respondent's stipulation that, during its corporate fiscal
year which ended May 31, 1980, specifically, the firm
purchased goods and services in the amount of $5,000,
approximately, directly from out-of-state suppliers.
Despite its concession, for the record, that it maintains
a business enterprise, Respondent contends that it should
not be considered subject to this Board's statutory or dis-
cretionary jurisdiction; the firm's contention purportedly
rests upon two grounds:
First, Respondent maintains that-while it currently
maintains and operates two Los Angeles facilities within
which public entertainments are provided, plus a La
Jolla, San Diego County, California, facility-those facil-
ities may not properly be characterized as nightclubs.
Second, Respondent concedes that-in the course of
its business operations-it purchases and receives goods
or services valued in excess of $50,000 annually from
sellers or suppliers located within the State of California,
but contends that it lacks knowledge sufficient to form a
belief with respect to whether such seller and suppliers
receive the goods which Respondent purchases, in sub-
stantially the same form, directly from out-of-state
sources; Respondent, therefore, denies that its purchases
from California suppliers constitute "indirect inflow" de-
rived from, or related to, interstate commerce.
Upon these grounds, Respondent denies that it should
be considered an employer "engaged in commerce and in
a business affecting commerce" within the meaning of
the statute herein. No defined rationale, putatively sup-
portive of Respondent's denial, has however been prof-
fered for the present record.
Respondent's presentation, generally, suggests a con-
tention, nevertheless, that its publicly patronized Los An-
geles facilities, particularly, are maintained and func-
tion-primarily-consistently with a service-centered
"workshop" format, somewhat akin to that found in col-
lege-type teaching facilities, whereby so-called "stand
up" comedians and comediennes, whether newcomers or
performers with established reputations, are provided
with regular or recurrent opportunities to "work out"
while practicing their several comedic skills before pre-
sumptively receptive "live" audiences; to run through or
"break in" their acts, while testing public reactions, with
respect to some hopefully programmed new material or
planned changes in their comedy "routine" presentations;
and to refine, "hone down," or perfect their particular
performance techniques.
(The record shows that-conjoined with Respondent's
nightly comedy act programs presented as public enter-
tainments-the corporation's president, owner, and self-
designated "total" operator, Mitzi Shore, frequently sets
up and presents so-called showcase programs during
which comedians and comediennes, designated by Shore
or selected pursuant to their personal requests, perform
before public audiences which, however, may likewise
include specifically invited theatrical, television, and film
producers, talent scouts and nightclub proprietors, to-
gether with other prospective "purchasers of talent" for
engagements within the general field of comedy enter-
tainment or dramatic production. Frequently, also, sever-
al participants in Respondent's public programs, or tan-
gentially connected with their presentation, provide con-
ventional, privately conducted workshop seminars, where-
in-normally for a small fee-comedians, comediennes,
and members of the public interested in learning how to
perform comedy may "get together" to exchange views
and suggestions with repect to matters of professional
comedic concern, to receive coaching from recognized
mentors with respect to their performance techniques, or
to practice their comedic skills, for "feedback" coupled
with some critical evaluation by their "workshop" pre-
ceptors or participatory peers.)
Presumably, Respondent seeks a determination, bot-
tomed upon these considerations that-while its several
California facilities may, concededly, function with a
substantial support staff or paid "employees" encompass-
ing office personnel, waitresses, bartenders, barboys, and
managers-the firm should not be considered a conven-
tional employer, within the meaning of the statute,
whose primary operations relate significantly to trade,
traffic, and commerce among the several States.
No such determination, within my view, would be
warranted.
In this connection, Respondent contends, vigorously,
that its Los Angeles establishments particularly should
not be considered "nightclub" facilities. The firm's spe-
cific reason-for its contention that Comedy Store pres-
entations should somehow be distinguished from night-
club shows, particularly, for jurisdictional purposes-has,
however, nowhere been clearly articulated; Respondent's
counsel, when queried, contended merely that "some
cases which refer to night clubs" and "certain other case
law" holding nightclub performers to be statutory em-
ployees should not be considered persuasively relevant,
with respect to his client's situation. (Respondent sug-
gests that Comedy Store functions, within its Los Ange-
les locations particularly, should be considered distin-
guishable from "traditional" nightclub operations, for
several reasons: First, because nightclubs generally
present three relatively lengthy, varied "acts" per show,
plus music provided by a band, while Comedy Store
programs normally compass numerous, relatively short,
presentations provided, more or less continuously, by
successively scheduled stand-up comics; second, because
nightclubs generally publicize and present polished
"acts" provided by established, well-regarded, perform-
ers during limited engagements, subject to defined re-
strictions with regard to their scheduled times of per-
formance and the nature of their stand-up material, while
Comedy Store presentations may compass both well-
known comic practitioners and people without widely
recognized reputations, who perform and practice their
skills within the designated "workshop" setting previous-
ly noted herein.)
Upon this record, however, I would conclude, for
whatever significance such a determination may have,
that, so far as the public is concerned, Respondent's op-
erations substantially parallel, and may properly be
equated with, those maintained by conventional night-
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clubs. Like them, Respondent's Los Angeles facilities so-
licit public patronage; they generally levy a door
"cover" charge; within their public rooms, they provide
patrons with liquid refreshment pursuant to stated mini-
mum charge policies; they present a program of "live"
public entertainment, daily, during stated nighttime
hours, for persons seeking such diversion or recreation.
Some Comedy Store performers, so the record herein
shows, have publicly referred to Respondent's Los An-
geles facilities as "the club" while comparing it with
"other" clubs. And Shore, within a lengthy personal
statement painted, presumably pursuant to her direction,
on the wall at Respondent's Sunset Boulevard location,
has-herself-publicly described the facility as "a work-
shop type of nightclub" for stand-up comedians. Within
my view, Respondent's suggestion that the facilities
noted should not be considered nightclubs merits rejec-
tion.
In any event, Respondent concedes-as previously
noted herein-that, whatever her Los Angeles establish-
ments may be called, Shore currently maintains a busi-
ness enterprise. In connection therewith, I find, she pro-
vides services, primarily retail in character, from which
she derives income. Besides her Los Angeles facilities,
wherein public entertainments are presented before
paying customers, these services presently compass:
First, Respondent's La Jolla, California, facility previ-
ously noted which, concededly, functions consistently
with a conventional "night club" format. Comedy shows
are presented twice nightly, at set times, with a master of
ceremonies, plus three "name" performers, generally
booked for weekly engagements, with their total com-
pensation set pursuant to negotiated contracts.
Second, Shore's booking and/or referral service,
which-when requested-dispatches comedians to per-
form for private parties; Respondent's proprietor sets and
collects fees charged for their services, from which she
retains a prearranged percentage.
Third, Respondent's comparable talent referrals,
whereby comedians or comediennes are dispatched to
particular booking agents, who thereupon arrange com-
pensated "college [campus] tours" for them; Shore de-
rives her percentage compensation cut, in such cases,
from the net pay which these touring comedy perform-
ers permissibly retain, after their travel and living ex-
penses on the record have been deducted.
Respondent's proprietor further provides frequent and
recurrent talent scout services for the American Broad-
casting Company; the record is silent, however, with
regard to whatever compensation she may have hereto-
fore received, or may currently be receiving, in that con-
nection.
Upon this record, I find, Respondent's Los Angeles
business operations-which constitute our primary focus
of concern herein-cannot reasonably be considered es-
sentially local in character. This Board's most recent de-
cisions-with regard to business enterprises within the
amusement and entertainment field-clearly foreclose
any such determination. (Compare Keamco, Inc., 90
NLRB 652, 653, 656-657 (1950); therein, this Board,
within a decision reached 3 months before the develop-
ment and promulgation of its first set of discretionary ju-
risdictional standards, held that a single motion picture
theater, which could not be considered an integral part
of some multistate enterprise, provided a service which
"affected" commerce within the meaning of the Act; the
Board concluded, however, that, since the theater's oper-
ations were "essentially local" in character, the assertion
of its jurisdiction would not effectuate statutory policies.
Some 11 years later, this Board found, nevertheless, that
the operations of a local sightseeing tour enterprise, func-
tioning primarily within the "amusement or entertain-
ment" field, had a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce; that it made
substantial out-of-state purchases; that its services were
provided for ultimate consumers, and were thus primar-
ily retail in character; and that its gross annual revenues
for a recently concluded fiscal year satisfied the Agen-
cy's currently relevant retail jurisdictional standard.
(Carolina Supplies and Cement Co., 122 NLRB 88, 89
(1960).) The Board therefore refused to decline jurisdic-
tion over the sightseeing tour business. Ray, Davidson &
Ray, 131 NLRB 433, 434-435 (1961); compare Actors'
Equity Association, 247 NLRB 1193, 1194, fn. 2 (1980);
American Guild of Variety Artists (Golden Triangle Res-
taurant), 155 NLRB 1020, 1023-25 (1965), and cases
therein cited; The League of New York Theatres, Inc., 129
NLRB 1429, 1431-33 (1961); Combined Century Theatres,
Inc., et al., 120 NLRB 1379, 1383-84 (1958); 123 NLRB
1759, in this connection.)
Since Respondent currently derives gross revenues,
which exceed $500,000 yearly, from its business oper-
ations, and concededly purchases certain supplies from
out-of-state sources, which cannot, reasonably, be consid-
ered de minimis merely, I find that its operations do
"affect" commerce, and that assertion of the Board's ju-
risdiction herein should be considered warranted and
necessary to effectuate statutory objectives.
11. CONCERNED LABOR ORGANIZATIONS
A. American Federation of Comedians
Within successive consolidated complaints herein,
General Counsel had designed this proceeding's first
Charging Party, American Federation of Comedians
(herein AFC), as a labor organization, within the mean-
ing of Section 2(5) of the statute. Respondent has, how-
ever, formally challenged the correctness of General
Counsel's designation.
The statute, of course, provides that "labor organiza-
tions" compass "any organization of any kind" wherein
"employees" participate, which exists for the purpose, in
whole or in part, of dealing with "employers" concern-
ing "grievances, labor disputes . . . rates of pay . .. or
conditions of work" particularly.
There can be no doubt that American Federation of
Comedians, when filing its charge herein, and thereafter,
constituted, and still constitutes, a viable "organization"
cognizable as such for present purposes. Within his brief,
Respondent's counsel currently presses no contrary con-
tention.
AFC's genesis, so the record shows, derives from a
concededly less-than-formal March 19, 1979, gathering,
1424
THE COMEDY STORE
within Respondent's Sunset Boulevard facility, when
slightly more than 100 comedians and comediennes-
who had theretofore performed as "regulars" within Re-
spondent's Los Angeles facilities-met to consider cer-
tain grievances and problems which Respondent should,
within their view, be requested to resolve. (Male per-
formers who provide stand-up comedy entertainment are
commonly designated as comedians; female performers,
similarly engaged, are called commediennes. Consistently
with the stylistic convention cogently proposed by Re-
spondent's counsel, within his brief, such performers will
be designated, generically, as comedians hereinafter; they
will be, likewise, referenced in masculine singular terms,
purely for reasons of stylistic simplicity and convenience,
save in cases where a gender-related designation would
normally be considered necessary.)
The significance of the gathering putative limitation to
stand-up comedians who had previously been considered
"regular" performers at Respondent's Sunset Boulevard
and Westwood facilities will be reviewed subsequently
within this decision.
Those present and participating, during this informal
March 19 gathering, determined, consensually, that a pay
policy demand, previously presented to Respondent's
proprietor, should be reaffirmed, and that some collec-
tively bargained "agreement" with Respondent should be
negotiated. In furtherance of their purpose, pursuant to
general agreement, they designated a spokesman quali-
fied to function as their negotiator; likewise, they voted,
tentatively, to withhold their services from Respondent
concertedly, in support of their compensation demand;
their determinatin was affirmed through a secret ballot.
Further, they determined initially that their ad hoc group
should be designated as Comedians for Compensation
(herein CFC), for public references purposes. (Subse-
quently, following developments which will be noted
hereinafter, the group's members consensually concurred
with a suggestion that, collectively, they should be de-
signed Comedians for Comedians, since their declared
objective with respect to winning compensation for their
performances had-by then-presumptively been real-
ized.)
When the group met thereafer, on March 25, they
reaffirmed, by voice vote, the previous secret-ballot deci-
sion, herein noted, to withhold their services. On March
27, their work stoppage, publicized with picket lines at
both of Respondent's Los Angeles facilities, began.
While CFC concededly lacked a formal organizational
structure when the work stoppage hereinabove noted
commenced, the record warrants a determination-
which I make-that, within the 3-month period between
March 27 and July 3, 1979, participants in the group's
concerted action, and their supporters, took steps to
define, somewhat more precisely, CFC's structure and
functions.
Initially, during April, while the work stoppage previ-
ously noted was still being maintained, a nominal mem-
bership meeting was convened. Those present voted,
among other things, to formalize CFC's organization;
they created a so-called Interim Board, with power to
direct organizational activities and prepare a definitive
charter draft. (While the group, then, had no dues-paying
members, and provided no specific documentation calcu-
lated to signify their formal affiliation, such as member-
ship cards, those "regular" performers at Respondent's
Los Angeles facilities who had, theretofore, given their
names and telephone number to CFC's designated lead-
ers, and who had supported the work stoppage, for the
purpose of procuring some remuneration for Respond-
ent's regular comedians, were considered members.)
Twelve volunteers were designated as the group's In-
terim Board members. When subsequent negotiations be-
tween CFC's spokesmen and Respondent's proprietor
produced a May 3 collectively bargained "agreement"
pursuant to which the work stoppage previously noted
was terminated, the comedian group's Interim Board
provisionally confirmed the various settlements reached,
pending their May 4 and 6 ratification by the collective
body's general membership.
The document which Respondent's proprietor and
CFC's spokesman had negotiated, designated as their
"agreement of settlement" specifically, provided, inter
alia, that Respondent would, "subject to the provisions
of applicable law," recognize CFC as the exclusive bar-
gaining representative of comedians who had previously
performed at Respondent's facilities as part of Respond-
ent's regular 6-day weekly schedules, or who would,
thereafter, perform "compensable sets" pursuant to such
schedules. Further, the document defined Respondent's
weekly "set" performance schedules; provided a mini-
mum compensation rate for performers; committed both
"parties" mutually to forswear "discriminatory or retali-
atory" action directed against their respective members,
employees, officers, principals or agents, bottomed upon
their conduct during the work stoppage previously
noted, or during settlement negotiations; and established
grievance procedures, which CFC, or that group's mem-
bers, might invoke with respect to "[events] giving rise
to . .. [disputes]" not specifically defined, and which
could culminate in binding arbitration, upon the grieving
party's demand. The settlement agreement, finally, pro-
vided for a 2-year "effective term" commencing upon
the document's written acceptance by designated repre-
sentatives of the parties.
On various dates, subsequent to May 7, when a fully
executed copy of their settlement agreement was deliv-
ered to Respondent's proprietor by CFC's spokesman
and principal negotiator, the group's grievance commit-
tee submitted written grievances to Respondent for dis-
cussion and resolution.
During a June 1979 general "membership" meeting,
CFC's putative "members" voted to ratify a decision by
their Interim Board, whereby the designated group's
name would be changed to American Federation of Co-
medians, called AFC hereinafter. Proposed articles of as-
sociation and bylaws for the renamed group were then
being drafted.
On July 3, during a meeting, scheduled and convened
pursuant to AFC's call, the group's presumed member-
ship voted, unanimously, to ratify their proposed articles
of association and bylaws. Those present signed AFC's
charter scroll, and were recorded as charter members.
Subsequently, during a late August-early September
1425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period, AFC's recognized membership nominated and se-
lected a slate of current officers. These officers contin-
ued to police the settlement agreement which CFC's
spokesman had negotiated with Respondent's proprietor;
several new grievances were filed thereunder (in the
meantime, AFC's several charter documents had been
filed with the U.S. Department of Labor, pursuant to the
Labor Management Reporting Act's presumed require-
ments.)
AFC's dues had, initially, been set at $25 per year.
The group's first annual dues bills, however, were not
prepared until February 1980; thereafter, sometime in
March 1980, they were dispatched to enrolled members.
With matters in this posture, there can be no doubt
that AFC, certainly since its formal adoption of that de-
monstrative designation, has functioned as a viable orga-
nization for the purpose of dealing with Respondent, par-
ticularly, concerning compensation rates, conditions of
work, and grievances filed on behalf of various stand-up
comedians, whom it purportedly represented. (Though
AFC, when it came into being and first undertook con-
certed action for the purpose of "dealing with" Respond-
ent relative to compensation grievances-while function-
ing with the tentative CFC designation herein noted-
had no formal structure, lacked a formally elected lead-
ership, lacked a constitution and bylaws, and collected
no dues, the group's concededly ad hoc character dic-
tates no determination herein that it was not a viable "or-
ganization" within the meaning of the statute, when its
May 3 settlement agreement with Respondent was nego-
tiated and signed. See Columbia Transit Corporation, 237
NLRB 1196 (1978); S & W Motor Lines, Inc., 236 NLRB
938, 942 (1978), and cases therein cited.)
Respondent's counsel, within his brief, currently prof-
fers no contary contention. Counsel seeks a determina-
tion, rather, that comedians who were considered regular
performers at Shore's Sunset Boulevard and Westwood,
Los Angeles, locations provided their services as recog-
nized "independent contractors" rather than as statuto-
rily cognizable employees; consistently with this view,
Respondent contends that AFC should not be considered
a statutorily defined labor organization, since it did not,
and does not, represent "employee" participants, while
dealing with a conceded employer, within the meaning
of the statute.
This contention, coupled with Respondent's further
contention that AFC lacks "standing" qualifying it to
press charges herein, will be considered and resolved,
subsequently within the present Decision.
B. American Guild of Variety Artists
Shortly following AFC's July 3 formation, Respond-
ent dispatched a letter-dated July 17, 1979, and signed
by Shore's executive assistant-directed to Comedians
for Compensation; therein, the group's leadership and
comedian members were notified that, for various rea-
sons, Respondent considered their "May 2nd letter"
breached by certain aspects of CFC's subsequent con-
duct, unilaterally rescinded, and consequently void.
Confronted, thus, with Respondent's withdrawal of
recognition, AFC commenced negotiations looking
toward the consummation of some formalized relation-
ship with the American Guild of Variety Artists (herein
AGVA), whereby the latter organization would take
over AFC's collective-bargaining responsibilities. Con-
sensual understanding were-so the record shows-
reached, pursuant to which, following a ratification vote
by AFC's membership, AGVA would undertake to rep-
resent AFC, specifically, together with that organiza-
tion's various comedian members, for collective-bargain-
ing purposes, including, inter alia the prospective mainte-
nance, administration, and enforcement of the May 3 set-
tlement agreement previously negotiated between CFC's
spokesman and Respondent's proprietor. Further under-
standings were reached that-with respect to various
other clubs where AFC members might perform-
AGVA would notify AFC regarding any commence-
ment of negotiations for collective-bargaining agree-
ments, and that AFC would retain a right to ratify what-
ever agreements AGVA might reach with other clubs
where AFC members performed.
On February 3, 1980, AFC's membership-summoned
to a properly noticed special meeting-voted, unani-
mously but for a single abstention, to assign AFC's col-
lective-bargaining powers and responsibilities to AGVA,
particularly for the purpose of dealing with Respondent
herein. (AFC's president, before the secret-ballot vote
was conducted, had announced that individual AFC
members would be considered eligible to join the
AGVA, with a reduced initiation fee-should AFC's af-
filiation with AGVA be approved-but that such action
would not be considered a prerequisite to AGVA's
formal assumption of AFC's collective-bargaining duties
and powers.)
The record herein reveals that-since the February 3,
1980, vote-AFC has nevertheless continued as a viable
organization, with dues-paying members. The group's
elected officers, together with its board, have continued
to function; membership meetings are held periodically.
With matters in this posture, General Counsel's repre-
sentatives within their brief suggest that AGVA may
properly be considered AFC's designated agent for col-
lective-bargaining purposes, since the February 3, 1980,
vote. Alternatively, General Counsel suggests that-since
the date designated-AGVA has functioned as AFC's
validly selected "successor" with respect to representa-
tion of that designated organization's members, particu-
larly for the purpose of collective bargaining with Re-
spondent herein.
Whatever determinations the record may warrant,
with respect to these suggestions, there can be no doubt
that, herein, AGVA may properly be considered a labor
organization which, inter alia, represents "employees"
within the entertainment industry for collective-bargain-
ing purposes. On several occasions, this Board has so
held, in various situational contexts. American Guild of
Variety Artists, AFL-CIO (VARU), 166 NLRB 521, 522,
fn. 1 (1967); American Guild of Variety Artists, AFL-CIO
(Fontainebleau Hotel), 163 NLRB 457, 459 (1967); Ameri-
can Guild of Variety Artists, AFL-CIO (VARU), 162
NLRB 1416, 1417 (1967); American Guild of Variety Art-
ists, AFL-CIO (Golden Triangle Restaurant, Inc., et al),
155 NLRB 1020, 1021-25. See 420 F.2d 311 (5th Cir.
1426
THE COMEDY STORE
1969), enfg. 163 NLRB 457 (1967); compare Wirtz v.
American Guild of Variety Artists, AFL-CIO, 267 F.Supp.
527 (D.C.S.D.N.Y. 1967), 64 LRRM 2406, 2407, in this
connection. For present purposes, these Board determi-
nations must be considered dispositive.
Whether this organization-when functioning, specifi-
cally, as AFC's designed "agent" or presumptively quali-
fied "successor" with particular reference to maintaining
or enforcing AFC's May 3 settlement with Respondent
previously noted herein-represents statutory employees
for collective-bargaining purposes, or lacks cognizable
"standing" sufficient to validate its charges herein, will
be considered subsequently within this Decision.
III. UNFAIR LABOR PRACTICES CHARGED
A. Applicability of the Statute
Within its formal declaration of policy, the National
Labor Relations Act refers to denials by some employers
of the right of employees to organize, and the cognizable
inequality of bargaining power between employees who
do not possess full freedom of association and employers
organized in corporate form. The statute further declares
its purpose and policy to protect the right of employees
to exercise "full freedom of association, self-organization,
and designation of representatives" for the purpose of ne-
gotiating with employers regarding their employment
terms and conditions. Within the amendatory Labor
Management Relations Act's declaration of policy, Con-
gress likewise declared its purpose and policy "to pre-
scribe the legitimate rights of both employees and employ-
ers" with regard to their relations affecting commerce.
Consistently with these declarations, the statute, as
amended, provides-within Section 7 specifically-that
"employees shall have the right to self-organization . . .
to bargain collectively through representatives of their
own choosing, and to engage in other concerted activi-
ties" for collective-bargaining purposes, or for other
mutual aid or protection. As referred to, throughout the
statute, the term "employee" has been defined to com-
pass any employee, without being limited to the employ-
ees of a particular employer, unless the statute states oth-
erwise, specifically. Congress has, however, declared
that "any individual having the status of an independent
contractor" shall not be considered a covered employee,
qualifying for statutory protection.
Necessarily, therefore, Respondent's contention that
stand-up comedians, generally, should be deemed "inde-
pendent contractors" rather than statutorily defined em-
ployees-for present purposes-presents a threshold
question, which must be resolved before General Coun-
sel's contention, regarding purportedly proscribed con-
duct presumptively chargeable to Respondent's propri-
etor, can properly be considered
1. Background
a. Respondent's operations described
In 1972, Sammy Shore and his wife, Mitzi Shore, start-
ed the Comedy Store; they commenced their public pres-
entation of comedy performances within the cocktail
lounge of Ciro's Hollywood, California, nightclub, which
now houses Respondent's Sunset Boulevard facility.
Shortly thereafter, during 1973, Mitzi Shore became the
Comedy Store's sole operator; and, during the following
year, she opened a second Los Angeles facility, located
in that city's Westwood Village neighborhood. In
August 1977, Shore purchased the complete Sunset Bou-
levard structure.
Less than a year later, Respondent's proprietor opened
a third facility, located in La Jolla, San Diego County,
California, which she concededly considers a conven-
tional "professional" nightclub. For a time, Respondent
likewise presented comedy shows within a Mission
Valley, San Diego, location; that facility, however,
closed while the present hearing, with regard to matters
which are currently in controversy, was in progress.
Within its two Los Angeles facilities, Respondent pre-
sents continuous shows featuring stand-up comedians, be-
tween 8:30 p.m. and 1:30 a.m., or 2 a.m. nightly,
throughout the calendar week; two shows, featuring six
comedians each, are presented on Friday and Saturday
nights. (The so-called stand-up comedians featured may
present comic monologues individually, or performed in
teams. Their performances-for current purposes-must
be distinguished, however, from those provided by
groups of comedians who work from scripts, or so-called
"improvisational" actors who present spontaneously de-
vised comedy skits, based upon volunteered audience
suggestions, regarding various proposed topics with
which their presentations might deal. Respondent occa-
sionally presents performances by such ,mprovisational
groups. The participants therein may-sometimes-com-
pass performers who, likewise, perform stand-up comedy
routines at various other times, whether for Respondent
or different club operators.)
At Sunset Boulevard, Respondent presents shows in
three rooms-the "Original Room" (so named because it
was the first room), the "Main Room" (formerly Ciro's
nightclub), and the "Belly Room" located on the facili-
ty's second floor. In Westwood, Respondent maintains a
single showroom.
The Original Room seats some 200 customers; Re-
spondent levies a cover charge and requires a two-drink
minimum purchase. Between 12 and 15 comedians pro-
vide a continuous comedy show, on week nights, with
each comedian's performance running between 15 and 20
minutes. On Friday and Saturday nights, 12 acts are pre-
sented, divided into 2 separate shows, with each comedi-
an performing for 25 minutes. A piano player provides
background music, plus introductory entertainment.
Sunset Boulevard's Main Room seats between 450 and
600 patrons, when filled to capacity. For some time,
prior to the period with which this case is concerned, no
public comedy performances were presented there-save
on those special occasions when the room may have
been rented by some well-known "star" comedian, for
the purpose of producing and presenting a particularly
publicized show wherein he, or she, would be featured.
In February 1979, however, Shore began presenting
Main Room performances, limited to Friday and Satur-
day nights, which featured "headliner" comedians with
well-established public reputations. These shows-which
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normally had 8:30 p.m. starting times-would compass
performances by some 10 comedians, with each present-
ing a monologue "spot" or "set" lasting 20-30 minutes.
Patrons were subject to cover charges, plus a two-drink
minimum purchase charge. Again, Respondent's piano
player provided background music.
The so-called Belly Room seated some 75 patrons.
Pursuant to Respondent's policy, subsequent to the fall
of 1978, this room normally featured 6-8 women come-
dians, who performed successive 20-minute "spots" be-
tween 8 p.m. and 12:30 a.m., commencing whenever a
sufficiently sizeable audience had been assembled. Drinks
were served, subject to a minimum purchase require-
ment. At some time, shortly following Respondent's
dedication of the Belly Room to performances by come-
diennes, cover charges were levied for Friday and Satur-
day night presentations.
At Westwood, Respondent's facility seats between 130
and 175 patrons. From Sunday through Thursday,
weekly, some 12-15 comedians provide successive 15-20
minute "spot" monologues; on Fridays and Saturdays, 2
shows are presented, with 6 comedians each. Respond-
ent's piano player provides incidental music. Cover
charges are levied, plus a two-drink minimum purchase
requirement.
The testimonial record warrants a factual determina-
tion-which Respondent has not effectively challenged-
that Comedy Store liquor sales, during the first 9-month
period within the business enterprise's 1978-79 fiscal
year, provided some 50 percent of its gross sales. And,
during that 9-month period, so the record shows, Re-
spondent derived a $200,000 net profit. For present pur-
poses, the gross revenues which Respondent's various
operations, described herein, produced within the desig-
nated 9-month period need not be determined. There can
be no doubt, however, that they substantially exceeded
the "net profit" figure hereinabove noted; I so find.
b. How comedy performers are engaged
As previously noted, Respondent features continuous
shows of stand-up comedians, within both of its Los An-
geles locations. The comedians presented come from a
candidate group, designated as so-called "regular" per-
formers, previously granted verbal recognition as such
by Respondent's proprietor.
Comedians normally win Shore's recognition as quali-
fied performers, eligible for Tuesday through Sunday
presentation at Respondent's facilities, by auditioning
their "acts" for her consideration. Monday nights at Re-
spondent's Sunset Boulevard facility are regular audition
nights. Amateurs desirous of careers as comedy perform-
ers, and comedians with previous experience desirous of
careers as comedy performers, and comedians with pre-
vious experience who may not have performed within
the Los Angeles area, or come to Shore's notice other-
wise, may take Respondent's Original Room stage and
present their stand-up routines for her critical appraisal.
(Those who perform are conventionally designated as
"Monday nighters" or "pot-luckers" since, presumably,
most of them have not-yet-won general recognition as
qualified practitioners of their professed art, within the
local comedy community.)
Respondent's proprietor judges their qualifications, so
the record shows, by both objective and subjective
standards. Their presentations must produce results; they
must, in a word, generate audience laughter. Further,
however, their routines must-so testimony, which I
credit, suggests-reflect both performance styles and
content which, however varied they may be, satisfy
Shore's personal standards with regard to comedy enter-
tainments worthy of Comedy Store presentation.
On the basis of Shore's critical evaluations, Monday
night performers are specifically recognized or rejected
verbally, as candidates for future Tuesday-Sunday sched-
uled performances at Respondent's Los Angeles loca-
tions. Those whom Shore accepts become "regulars"
within the Comedy Store's particular parlance.
c. Scheduled performances
Comedians considered "regulars" because they have,
sometime previously, auditioned successfully may tele-
phone Respondent, weekly, on Mondays specifically;
they may, then, request projected "spots" within Re-
spondent's prospective schedule lineup, which will list
those comedy performers who have been selected for
presentation throughout the balance of that particular
calendar week. Normally such callers-limited to those
previously or recently designated as qualified regulars by
Respondent's proprietor-tell Shore's secretary the Tues-
day-Sunday dates, preferred times, and preferred loca-
tions at which they would like performance time allotted
during the week. (On occasion, should Respondent be
organizing some special event, Shore or her subordinates
may, however, telephone a comedian, to ask whether he
would wish to participate.)
Taking into consideration each comedian's requests,
Respondent's proprietor then makes up her schedule for
the week, designating the time, projected length, and lo-
cations for each comedian's performance or perfor-
mances.
(General Counsel's witness, Tom Dreesen, testified-
credibly within my view-that Shore once described her
functions, when preparing her weekly performance
schedule, as comparable with those performed by televi-
sion show producers.)
Comedians will not be scheduled for performances on
days which they have not requested; determinations with
regard to their scheduled times of performance, their
performance's length, and their performance's particular
location, are reserved, however, for Shore's discretion.
Thereafter, on Tuesday, after the week's schedule has
been determined, comedians may call Respondent's
Sunset Boulevard office, during daytime hours, to learn
which of their spot requests have been granted. The
record warrants a determination-which I make-that
scheduled comedians can then report their acceptance or
rejection of some particular spot or spots for which they
may have been listed; some credible testimony, however,
suggests that, in practice, such prompt rejections have
been rare.
(With respect to whether comedians who promptly
reject Respondent's proffered spots suffer disciplinary re-
prisals, the record will not-within my view-warrant a
1428
THE COMEDY STORE
definitive determination. Comedian Dailey Pike, testifiy-
ing in Respondent's behalf, reported that he had never
suffered "repercussions" following a particular spot's re-
jection or cancellation. General Counsel's witness, Susan
Sweetzer, claimed, however, that she had, once, turned
down a mistakenly proffered Wednesday night spot
which she had not requested because of some conflicting
commitment, and that she had not been granted perform-
ance spots for 2 weeks thereafter. Considered in totality,
nevertheless, the record will not, preponderantly, sup-
port a determination, within my view, that Sweetzer
was, consciously and deliberately, denied performance
time by way of discipline or punishment for her prior re-
fusal to perform.)
Comedians who call, whether or not they receive spot
assignments, may concurrently request placement on Re-
spondent's so-called fall out list; this phrase designates a
list, prepared weekly, showing Comedy Store regulars
who have volunteered to fill in, with relatively short
notice, should be scheduled comedian's subsequent can-
cellation, with respect to his Tuesday notice of perform-
ance time, be reported.
As noted, comedians-once they have been scheduled
to perform-may reject a proffered spot or request can-
cellation. When this happens, the comedian concerned is
reported to have "fallen out" with respect to the week's
schedule. Another comedian, normally, will thereupon
be chosen, from the week's volunteer "fall out" list,
qualified to replace him. Alternatively, however, Re-
spondent's representatives may telephone some other
comedian, for the purpose of offering him the canceled
performer's spot.
The record, within my view, warrants a determina-
tion-consistent with Respondent's factual contention,
proffered within its brief-that the size and particular
composition of the group considered "regulars" whose
members may be seeking performance spots, during
successive Monday call-in periods, routinely fluctuates.
Comedians may travel, soliciting or fulfilling professional
engagements in various other communities. Those who
might be, for a time, committed to such "road" tours, to-
gether with those who might be currently involved with
conflicting film or television show productions, locally,
may be precluded or prevented, thereby, from soliciting
Comedy Store performance spots for significant periods,
varying in duration. They are still, however, considered
"regulars" qualified to solicit subsequent performance
time allotments at Respondent's several facilities, when
they return or again become "available" thereafter. In
short, recognized "regular" status, when conferred-
however informally-by Respondent's proprietor, has
normally been considered a continuing status, despite a
comedian's subsequent failure or lack of availability to
solicit spots within a Comedy Store facility for pro-
longed periods, so long as that comedian remains a cur-
rently "active" performer with publicly recognized co-
medic skills.
Once granted performance time, comedians are expect-
ed to perform as scheduled. Should their conformity
with Respondent's previous promulgated schedule belat-
edly become difficult or impossible for some reason,
however, the comedians concerned have certain options.
Should some verbal notice to Respondent's designated
personnel-sufficiently beforehand-prove possible, they
may request a schedule change. (Shore generally handles
such change requests, personally, since-when her
weekly lineup schedules are prepared-she considers a
prearranged "order" with respect to performances quite
important. She endeavors, so the record shows, to fea-
ture successive performers with varied styles, during
each facility's evening presentation.)
Alternatively, comedians who find themselves-on
short notice-unable to perform, during their scheduled
spot time, may cancel. Should this become necessary,
however, the comedian concerned is expected to notify
Respondent's designated office personnel, or the sched-
uled show's master of ceremonies, sufficiently in advance
so that some sort of substitution can be managed. (The
record, with respect to Respondent's notice requirement,
provides no substantial, reliable, or probative evidence
regarding the minimal period of prior notice, regarding
unavailability which Respondent desires, expects, or re-
quires. Presumably, Respondent's management repre-
sentatives and Shore determine, case by case, whether
timely notification has been proffered, with due regard
for each case's particular circumstances. The record does
reveal that-for a brief period following the March-May
1979 work stoppage previously noted-Respondent had
a posted policy requiring 8 hours' advance notice with
respect to cancellations; that policy was abandoned
within a period of weeks, however, when it proved un-
workable.)
Comedians who report late may, sometimes, be permit-
ted to perform, nevertheless, following their tardy arriv-
al; this would be true, particularly, with well-known
"headline" performers. With respect to comedians of
lesser stature, late arrivals whose tardiness may have
caused a scheduled "hole" may find their previously des-
ignated spot taken by some replacement. They will, in
short, find themselves "bumped" or denied performance
time that night.
The record, considered in totality, warrants a determi-
nation-which I make-that comedians who report late,
or who fail to report, without prior notice, for their pre-
viously scheduled spot assignment, may be reprimanded
thereafter by Respondent's proprietor. (Some of General
Counsel's witnesses testified regarding their "thought" or
"belief' concededly based upon nothing more than limit-
ed personal observations, plus hearsay reports from
fellow comedians, that tardy performers or particular
"no shows" might-under certain circumstances-be dis-
ciplined further. These witnesses claimed that, upon oc-
casion, Shore could-and did-schedule such tardy or
"no show" performers for subsequent spots on weekday
nights generally considered less desirable, or for less
prestigious spot performance times, which preceded or
followed some particular night's "prime time" period.)
Conceivably, Shore could discipline tardy performers,
or particular no-show comedians, by completely denying
them performance spots for some limited period, or by
granting them-for a limited time-fewer or less desir-
able spots. Certainly, General Counsel's several testimo-
nial proffers persuasively suggest that, throughout the
1429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period with which this case is concerned, various come-
dians, subjectively, considered such possible disciplinary
reprisals, by Respondent's proprietor, clearly within her
recognized powers. However, Respondent's various post-
strike performance records-which have not been chal-
lenged or contradicted herein-warrant a determination,
contrariwise, that Shore does not, routinely or pursuant to
fixed policies, currently subject comedians purportedly
delinquent in these respects to disciplinary treatment
beyond mere reprimands. And, within my view, General
Counsel's representatives, herein, have not-preponder-
antly-established that Respondent's normal prestrike
practice had, rather, reflected stringent punitive or retali-
atory reactions.
d. Conditions under which comedians perform
Within the Comedy Store's Los Angeles facilities,
stages, piano players, lights, and sound systems are pro-
vided for Respondent's performers; concededly, Re-
spondent's several arrangements, in this respect, comport
with industry practice. Further, Respondent provides a
designated master of ceremonies, who delivers "introduc-
tions" for the scheduled performers; the master of cere-
monies likewise performs a nominal monitor's function
(which will be noted, subsequently, within this Decision)
with respect to limiting each comedian's performance
time to his particular spot's previously scheduled dura-
tion.
Comedians are requested to report on time for sched-
uled performances; Respondent has publicized its prefer-
ence, however, that Comedy Store performers should
report a half-hour early, so that their master of ceremo-
nies, for the night, will be apprised regarding their pres-
ence before they are due to perform.
Concurrently with their performances, comedians may
give Respondent's piano player particular directions,
should they require musical accompaniments during their
presentation. Should they so desire, they may direct a
modulation, with respect to the volume of Respondent's
sound system. Further, they may request the Comedy
Store's designated master of ceremonies to provide any
special introductory remarks which they desire.
Comedians are directly responsible, generally, for cre-
ating, developing, and refining their particular comedy
routines. They provide their own costumes, props, and
music-whenever such accoutrements or materials may
be required. Respondent does not require comedians to
store their props within its Los Angeles facilities, and
most do not.
Comedy Store performers, further, prepare their par-
ticular routines, personally, for presentation. They deter-
mine their comedy monologue's content; likewise they
determine the sequential order pursuant to which their
successive jokes, or humorous sallies, will be proffered.
(The record warrants a determination, which I make,
that-when comedians have performed their routines for
Shore's preliminary consideration-her comments and
critical appraisals, both with respect to their comedy
monologue's content and their manner of presentation,
may have been requested or voluntarily provided. The
circumstances under which such comments and critical
evaluations by Respondent's proprietor may have, here-
tofore, been proffered-together with questions raised,
herein, regarding their weight and possibly "controlling"
significance-will be considered, subsequently, within
this Decision.)
Respondent's comedian performers may, sometimes,
find themselves required, however, to modify their pres-
entations. They may find themselves constrained to limit
their physical movements within the confines of Re-
spondent's stage; they may be required to vary their rou-
tine's content, depending upon their performance's par-
ticular location, their particular audience's reaction, their
possible harassment by hecklers, and belated discoveries
regarding their monologue's possible subject-matter con-
gruence with a preceding performer's discussion topics.
In this connection, Respondent's scheduled perform-
ers-themselves-normally make whatever adaptive
changes their particular situations may require. The
Comedy Store does not directly require them, preliminar-
ily, to rehearse their presentations, whether on Respond-
ent's premises, within their homes, or within some other
public facility. (Respondent's women performers, regu-
larly scheduled for Sunset Boulevard's Belly Room pres-
entation, were "urged" by Respondent's proprietor to
make arrangements for rehearsal time with the Belly
Room's regular piano player, since she (Shore) conced-
edly "liked" performances, particularly by women come-
dians, which utilized music to punctuate sustained stand-
up monologues. Some comediennes, so the record shows,
complied with this suggestion. They had been told by
Respondent's proprietor, so comedienne Susan Sweetzer
testified, that she (Shore) had previously asked the Belly
Room's piano player to make himself "available" for re-
hearsal, when requested, and that he had declared his
willingness to rehearse with scheduled women perform-
ers.)
When regularly scheduled comedians perform, they
perform, concededly, without any concurrent directions
provided by "house" representatives.
The record, considered in totality, will support a de-
termination-within my view-that Respondent's propri-
etor considers a scheduled comedian solely responsible,
in the first instance, for devising the manner in which his
comic routines will be presented, so that particular audi-
ences will be entertained. Comedy Store performers
may-sometimes-be told to cut down, lengthen, or
modify their routines; normally, however, they will not
be told precisely how such cuts, supplementation, or
changes, whether directed or requested, should be made.
(From time to time, Respondent's proprietor may, con-
cededly, proffer comments regarding a particular regular
comedian's scheduled act; her comments may be directed
either to his comic, routine's content, or his manner of
presentation. Further, she may-sometimes-comment,
generally or specifically, regarding the comedian's career
choices. Her comments, when proffered, have-in most
cases-been given serious consideration by the comedian
concerned; however, her "advice" may be followed, or
may sometimes be slighted. Respondent contends, herein,
that Shore's comments represent "career counseling and
encouragement" merely; further, Respondent contends
that comedians suffer no "reprisals" when her comments
1430
THE COMEDY STORE
are disregarded. Subsequently, within this Decision,
these contentions-which General Counsel's representa-
tives have countered with testimony calculated to sug-
gest that, when Shore's comments have been disregard-
ed, the comedians concerned have suffered career conse-
quences short of direct reprisal-will be considered.)
During performances, Respondent's scheduled come-
dians may-sometimes-continue beyond their allotted
time. When this happens, Respondent's schedule for the
night may be set awry; sometimes, this may prevent co-
medians given late night time spots from realizing their
scheduled opportunity to perform before the night's au-
dience leaves. Concededly their feelings, consequently,
may be hurt. Thus, to signal a performing comedian that
his previously set time has expired, and that Respond-
ent's next scheduled comedian is waiting to perform, the
night's master of ceremonies will flash a light, wave his
hand, or hold up a candle. When shows, on particular
nights, are running significantly behind schedule, such
"cut off" signals may be given frequently. They are, usu-
ally, respected; the signaled performer leaves the stage.
Comedians who persistently remain on stage beyond
their allotted time may be seriously reprimanded; the
present record, however, will not-preponderantly-sup-
port a factual determination, within my view, that they
are directly disciplined for such derelictions.
e. Group relations
Commencing in October or November 1978, subse-
quent to Shore's dedication of Sunset Boulevard's Belly
Room to comedy presentations by women performers
exclusively, she began scheduling a series of periodic bi-
weekly Wednesday afternoon meetings, held in the
room, for Respondent's previously designated regular co-
mediennes. The comediennes were given prior notice,
usually by telephone when they called Respondent to
report their availability, whenever these meetings were
scheduled; comedienne Joanne Astrow testified, credibly,
that she believed those notified were "expected" to
attend. (While a witness, Astrow conceded that she was
never told she would not be "employed" thereafter,
should she fail to attend the meetings. She declared,
however, that-since she believed a performer's contin-
ued connection with Respondent's public presentations
"largely" depended upon how well his or her personal
relationship with Shore was maintained-she considered
it "important" to be there.)
The meetings normally lasted an hour or somewhat
longer; during most of them, Shore, so the record shows,
discussed numerous topics of presumably "mutual" inter-
est with the comediennes present.
Nothing within the present record would warrant a
determination, within my view, that these meetings were
particularly called to promote discussion, or to provide
specific instruction, with regard to how women come-
dians might "improve" or "refine" their routines. When
queried regarding their general tenor, Astrow character-
ized them, rather, as "pep rallies" primarily; she testified,
credibly, that, so far as Shore was concerned:
. .the intention of the meetings had mostly to do
with . . . the success of the Belly room as a busi-
ness entity . . . [She] presented [her belief] that it
would be good for women comediennes if the Belly
Room became a business success ....
Further, comedienne Susan Sweetzer reported, for the
record, that Respondent's proprietor frequently discussed
general Comedy Store policy:
. . .how to make the Belly Room function well as
a women's room . . . how to promote the room,
how to retain the femininity of the room, and the
fact that Mitzi really wanted a place where the
women could work exclusively . . . where they
would not be inhibited by the general hostility of
the Original Room . . . in terms of being in compe-
tition with men.
* * * S S
She wanted to know what would make us feel com-
fortable, what kind of image we wanted to have
[for] the room-what kind of ambience we wanted
created in the room ....
Upon occasion, Shore would compliment the come-
diennes present whom she considered to be following the
"right track" with their routines; she declared that she
"liked" various things they were doing. Inter alia, she
did encourage them, as previously noted, to utilize music
in connection with their presentations. She commented
that she considered the Belly Room successful, since it
helped women performers "find" themselves.
Consequent upon complaints and suggestions proffered
by various comediennes during these meetings, Respond-
ent's proprietor further took several steps calculated to
enhance the Belly Room's presumptive desirability for
performance purposes. A drink blender, located behind
the room's bar, which could be, and sometimes was,
turned on by Respondent's bartender just in time to ruin
a comedienne's "punch" line, was removed from the
room; the bartender was, likewise, requested to ring up
drink tickets, on his cash register, solely during periods
of audience laughter, and not while "set up" or "punch"
lines were being delivered. Respondent, pursuant to re-
quest, provided a colored plastic spotlight attachment
which could soften the Belly Room spotlight's white
glare. Finally, so the record reveals, Respondent's come-
diennes requested padding for the Belly Room's door, so
that-when it was closed-distracting noise and laughter
from Sunset Boulevard's other rooms could no longer
disturb their performances. Their requests was complied
with.
f. Further concomitants of the relationship between the
comedians and Respondent
Comedians received no monetary pay from Respond-
ent for Los Angeles performances, prior to their concert-
ed work stoppage previously noted herein. Since shortly
before Shore's negotiated concurrence with the May 3,
1979,'written "agreement of settlement" which terminat-
ed the stoppage, however, Respondent's performers have
been financially compensated. And Respondent's sched-
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uled regulars are currently paid fixed sums for their com-
plete acts rather than variable compensation for what-
ever time their performances may require. (The Comedy
Store now pays comedians $25 per complete acts, for
performances throughout the calendar week-save on
Monday nights-in Sunset Boulevard's Original Room;
pays $10 per act during the week, and $25 per act on
weekend nights, at Westwood; and divides 50 percent of
the cover charges collected from patrons, between the
comedians scheduled to perform in Sunset Boulevard's
Main Room. The record, herein, suggests that Respond-
ent sponsors no comedy presentations-currently-
within Sunset Boulevard's Belly Room. Performers se-
lected by Shore for weekly engagements at Respondent's
La Jolla location, however, have-throughout the period
with which we are concerned-performed there, for
compensation, pursuant to written agreements stipulating
that they may be considered independent contractors.)
Every "regular" comedian who performs, pursuant to
schedule, within a particular location receives the same
compensation; the record warrants a determination,
which I make, that this "equal pay" concept, currently in
force, derives from demands formulated and proffered by
Respondent's designated "regulars" during their May
1979 negotiations with Shore which produced the writ-
ten agreement of settlement previously noted.
Presented as Respondent's witness, comedian Dailey
Pike testified, without challenge or contradiction, that,
currently, he averages $200-S250 in monthly income,
from his Comedy Store performances.
Comedians who performed as scheduled regulars
within Respondent's Los Angeles facilities, before the
work stoppage previously noted, had not written con-
tracts; since the stoppage's termination, likewise, Re-
spondent negotiates no written "agreements" with come-
dians, save for those performing within its La Jolla facili-
ty.
Before their work stoppage, however, Respondent's
scheduled Los Angeles performers did enjoy certain gra-
tuitously provided perquisites-possibly cognizable as
fringe benefits or forms of compensation-by virtue of
their recognized regular status. They were granted per-
sonal admission privileges, without being required to pay
a cover charge, with respect to Respondent's Los Ange-
les facilities; at Sunset Boulevard, they were given car
window stickers by virtue of which they were permitted
to park, without charge, within a nearby hotel's parking
lot. While on Respondent's premises, for performance
purposes, they were permitted two "complimentary"
drinks. For some time, shortly before their work stop-
page herein noted, Respondent had, further, provided
regular comedians with a complimentary Saturday night
brunch. On occasion, they were given T-shirts; some co-
medians-their number never specified-received Christ-
mas presents.
Each comedian, within the group with which we are
presently concerned, has always been responsible for
paying his own Federal and state taxes; Respondent
withholds no portion of whatever compensation come-
dians currently receive, for Federal or state income tax
purposes.
Further, Respondent currently provides no workmen's
compensation coverage for performers. At one time, pur-
suant to advice received, Respondent did carry work-
men's compensation insurance for comedians, concededly
for the purpose of forestalling a possible $10,000 penalty,
based upon presumptively relevant State of California
Labor Code provisions. This coverage was dropped,
however, when Respondent was notified by a Depart-
ment of Industrial Relations representative that "based
upon the facts represented" within a letter submitted by
Comedy Store counsel, the department would consider
the comedians concerned "independent contractors" for
whom worker's compensation insurance coverage would
not be sought.
Many comedians within the local comedy communi-
ty-though recognized as performance regulars for
Comedy Store scheduling purposes-routinely seek dif-
ferentiated, but comparable, work within the public en-
tertainment field. Personally, or through retained agents,
they may solicit performance opportunities with motion
picture, stage, or television show productions. Further,
they may, occasionally, perform as stand-up comedians
within clubs other than Respondent's designated Los An-
geles facilities. (The record persuasively suggests, how-
ever, that some comedy practitioners-particularly those
who may not have yet won significant public recognition
as comic monologists-may, of necessity, derive their
primary livelihood through regular work outside the
public entertainment field, while persistently seeking per-
formance opportunities therein.)
When performing elsewhere-whether as stand-up co-
medians, actors, or in some comparable capacity-such
persons may, occasionally, be required to provide serv-
ices on the very night, or nights, for which their
Comedy Store performances, that week, may have been
scheduled.
The record, considered in totality, will support a fac-
tual determination within my view that Respondent
claims no formal or consensually recognized command
"right" whereby comedians may be restrained, or have
been restrained, from performing their comedy routines
pursuant to arrangements with different public entertain-
ment providers. (However, several witnesses, summoned
by General Counsel's representatives, testified-purport-
edly because of hearsay reports received, plus their sub-
jective "feelings" or "common knowledge" or "general
understanding" generated thereby-that comedians who
had performed at comparably well-known clubs disfa-
vored by Shore might not be scheduled thereafter for
Comedy Store performances. Inter alia, these witnesses
testified that their fellow comedian, Tim Reid, had re-
portedly performed for a San Diego club-restaurant, T.
D. Hays, subsequent to Shore's termination of Respond-
ent's performance-booking relationship with that enter-
prise. They declared that Reid was never "seen" per-
forming at Comedy Store facilities thereafter; they "un-
derstood" that he was considered persona non grata, so
far as further Comedy Store performance spots were
concerned. Comedienne Dottie Archibald further testi-
fied, credibly and without contradiction, that when Reid
subsequently visited Respondent's Sunset Boulevard fa-
1432
THE COMEDY STORE
cility, pursuant to a specific invitation from comedian
Tom Dreesen, who was being feted during a friendly
"roast" sponsored by fellow comedians-he (Reid) pub-
licly referred to his current banishment; Archibald re-
ported that Shore, who was present, did not-so the co-
medienne noted-find Reid's comment amusing.)
Credible testimony will, nevertheless, support a factual
conclusion, within my view, that Respondent's propri-
etor has, sometimes, suggested that comedians should
avoid certain other clubs which might solicit or welcome
their services. In this connection, Archibald's testimony,
which I credit in this particular, reveals Shore's sugges-
tion, sometime during 1978, that she should eschew fur-
ther performances at The Improvisation-concededly a
competitive Los Angeles comedy club-because its pro-
prietor, Bud Friedman, was "not a nice person" and be-
cause it was "not a good place" for her to work. Fur-
ther, Archibald reported Shore's advice-proffered pur-
suant to her (Archibald's) solicitation-that she should
reject a tentative proposal pursuant to which she was
promised a booking to perform at Chicago's Playboy
Club, because such a booking "would be bad" for her
career. The comedienne never accepted a Playboy Club
booking; she did, however, continue her Improvisation
performances. Her testimony reflects her professed recol-
lection, however, that, further Improvisation appearances
"prevented" her from becoming a favored Comedy Store
performer, whom Shore would schedule frequently.
The present record, however, clearly supports a deter-
mination that many regular Comedy Store performers
seek, and frequently secure, performance time as stand-
up comedians with other comedy clubs or purchasers of
comic talent. When performing elsewhere, they may
sometimes identify themselves as regular Comedy Store
performers; they have not, however, been required to do
so. Nor have they been requested or required to report
their compensation, derived from performances else-
where, to Respondent's management representatives.
(Occasionally-so record testimony, which I credit,
shows-comedians may be requested, by Respondent's
public relations representative, to make themselves avail-
able for local radio shows, or newspaper interviews,
during which their Comedy Store connections, and per-
formances, would be discussed. No determination would
be warranted, however, that particular comedians have
been told that Respondent considers their public appear-
ances obligatory, or that they would be disciplined-
through some subtle form of reprisal-should they fail to
comply with Respondent's designated "publicity" re-
quests. Comedienne Dottie Archibald testified, credibly,
that she complied with these requests for public appear-
ances with the "hope" that they would help her get
more and better performance time spots.)
Respondent's proprietor, so the record persuasively
suggests, considers most regular Comedy Store perform-
ers qualified-some to a greater, and some to a lesser,
degree-with respect to fulfilling engagements, within
the public entertainment field, whether in motion picture,
stage, or television productions, nightclubs, or prear-
ranged college campus tours.
Shore may significantly help comedians display their
comic skills and qualifications for prospective talent pur-
chasers, such as nightclub proprietors, motion picture
and stage producers, television show producers and di-
rectors. Respondent's proprietor frequently sets up
"showcases" for that purpose. (Showcases are public
performances, specially scheduled, which prospective
purchasers of comic talent have been invited to attend,
and during which they may judge the comic skills of the
showcase performer or performers, and determine
whether to engage them. Sometimes, comedians have re-
quested Shore to schedule showcase presentations; Re-
spondent's proprietor, however, may refuse. Once-so
credible testimony, proffered for the record, shows-she
rejected a performer's showcase request because she did
not consider the comedienne concerned "ready" with re-
spect to performing effectively. Sometimes, Shore sched-
ules showcases herself, pursuant to prospective "buyer"
requests received, or pursuant to some personal decision;
particular comedians, whom she presumably considers
qualified for such presentation, will then be requested to
participate.)
When showcases have been set up pursuant to Re-
spondent's initiative, the comedians requested to partici-
pate may presumably decline. Comedienne Joanne As-
trow's proffered recollections reveal that she once con-
sidered declining a proffered showcase opportunity be-
cause she felt her presentation, at Shore's proposed time,
would not promote her career. However, she finally
chose to participate-so her testimony shows-because
she "felt" that her Comedy Store position "might be
jeopardized" should she fail to follow Shore's instruc-
tions. Considered in totality, the record, within my view,
will support a determination that reported declinations
by comedians, with respect to proffered showcase spots,
have been rare.
Respondent does not, explicitly, require comedians to
spend their evenings at Respondent's Los Angeles facili-
ties when they have not been scheduled to perform. The
record shows, however, that many comedians do "hang
out" within Respondent's Sunset Boulevard and
Westwood locations, during nightly show periods when
they have not been scheduled. (Before nightclub propri-
etors, within this field, developed weekly or nightly
scheduled lineup procedures, the phrase "hanging out"
described a practice whereby professed comedians would
wait around comedy clubs, in the hope that they might,
momentarily, be selected for performances. Summoned
as Respondent's witness, Meg Staahl, Shore's executive
assistant, testified that-since Respondent currently pre-
sents nightly shows pursuant to schedules-comedians
have no reason for hanging out within Comedy Store
facilities while hoping to be tapped for some show par-
ticipation; Staahl declared that nonscheduled comedians
now visit the Comedy Store primarily for social con-
tacts. While on Respondent's premises, so several of Re-
spondent's witnesses reported, they may discuss their ca-
reers, or try out new comic "bits" with fellow come-
dians. Shore's executive assistant conceded, however,
that-should a given night's show suffer a last minute
cancellation or failure to report, by some scheduled per-
former-another comedian who was "hanging out"
might be requested to serve as his replacement.)
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And comedienne Dottie Archibald testified-basing
her testimony upon her personal observations, communi-
cation with her fellow comedians, and general "under-
standing" within the local comedians' professional com-
munity, plus various conversations directly with Shore
and her secretaries-that "hanging out" was consensually
considered "part of the job" so far as regular Comedy
Store performers were concerned. The comedienne, so
her testimony shows, regularly "watched and saw" that
comedians who "hang out all the time" were given more
scheduled time spots than those who did not.
According to Archibald, frequent "hanging out" was
more important for lower level regular comedians who
had not yet won public reputations sufficient to qualify
them for desirably prime time spots weekly; they would
"hang around [Mitzi Shore] like moths around a flame
. . . and make witty little comments" calculated to win
her favorable notice. Further, comedienne Susan
Sweetzer testified, categorically, that Shore has specifi-
cally told her:
. . .that if [she] expected to get time and better
time at the Comedy Store, that [she] was required
to hang out ....
According to Sweetzer, she started going to Respond-
ent's Sunset Boulevard or Westwood facility "four and
five nights" weekly; her testimony shows she began to
receive scheduled time spots "two to four" times per
week.
Upon the present record, which has been fully consid-
ered, but which need not be further recapitulated, deter-
minations would clearly seem to be warranted, within
my view, that Shore considers the presence of comedians
"hanging out" within Comedy Store facilities desirable,
since their presence generates a favorable ambience cal-
culated to stimulate public patronage; that she considers
the presence of such a coterie, therefore, good for Re-
spondent's business; that she has-once at least-declared
that she considered herself "the mother of all come-
dians" and that "the more of her children that hung
around" the happier she felt; and, consequently that-
when Shore considers particular comedians worthy-
their specific reward for hanging out when not perform-
ing will be more, or more desirable, peformance time al-
lotments. That Respondent's corps of regular comedians,
generally, correctly perceives Shore's manifest view-
point-despite her conceded failure to frame a definitive
rule-regarding the desirability of their frequent pres-
ence on Comedy Store premises, and their possible
future time spot rewards, cannot be doubted.
g. Professional progression within the Comedy Store
system
When this case was heard, several of General Coun-
sel's witnesses were queried, inter alia, regarding their
personal, subjective motivation, with respect to their vo-
cation as public entertainers. Since, prior to their con-
certed work stoppage, previously noted, those comedians
who performed at Respondent's Los Angeles locations
had not been monetarily compensated, questions were
raised with respect to their primary purpose, when solic-
iting scheduled performance time there; Respondent's
counsel sought to elicit concessions, essentially, that their
basic purpose, when they sought performance opportuni-
ties before live Comedy Store audiences, had been to de-
velop and perfect their comic skills and presentation
techniques, rather than to pursue a livelihood bot-
tomed-primarly-upon their immediate relationships
with Respondent's enterprise. When queried in this con-
nection, comedienne Ann Kellogg Elder testified, how-
ever, that counsel's suggestion did not compass her pur-
pose entirely; she declared, rather, that:
Part of my purpose is that I had been an entertainer
all of my life, and, by continuing what I had been
involved in for some twenty-seven-odd years, was a
natural state for me. It is most natural for me to be
on stage dealing with my personality on a perform-
ing level than it is for me to be anywhere else. I
have more freedom, more self-confidence, more
love of self, more involvement with my own entity,
when I am performing. And that is a very strong
purpose for me. It is wonderful to have a full audi-
ence, but it is not totally the purpose. There is
much more. There is a much deeper meaning there
than merely being in front of an audience and per-
fecting your act ....
General Counsel's further witnesses may not have been
quite so articulate; their testimony, considered in totality,
persuasively suggests, however, that Elder's subjectively
insightful view, regarding her motivation, reflects a per-
ception widely shared within the comedy community.
In their pursuit of self-expression, and self-fulfillment,
comedians, so the record shows, naturally seek more per-
formance opportunities. They prefer-and, wherever
possible, solicit-performance time before substantial au-
diences, from whom they hope to win favorable reac-
tions to their presentation.
Within the Los Angeles area, Respondent's Sunset
Boulevard and Westwood facilities have clearly pro-
vided-throughout the period with which this case is
concerned-more performance opportunities, for come-
dians desirous of fulfilling their psychic needs and con-
currently promoting their careers, than other comedy
clubs. (Since its establishment, the Comedy Store has
provided continuous shows, presenting stand-up come-
dians, consistently with a scheme of presentation which
had, theretofore, been developed in New York City
comedy clubs, but which was relatively new, within the
Los Angeles area particularly. Currently, so the record
shows, some 10 to 15 clubs, within the greater Los An-
geles-San Diego territory, present comedians as featured
performers. However, save for The Improvisation, previ-
ously noted herein, which likewise presents continuous
shows with a group of stand-up comedians performing
nightly, these clubs normally present featured performers
in structured shows, which provide a necessarily limited
number of comedy performance opportunities.)
Several comedian witnesses testified herein that, from
their particular points of view, the Comedy Store realis-
tically provided "the only game in town" throughout
most of this period, since Respondent's facilities provided
1434
THE COMEDY STORE
the greater number of performance opportunities, by far,
for stand-up comedy monologists.
Further, the record, within my view, will support a
determination, which I make, that Respondent's two Los
Angeles clubs, because of their public reputation, have
provided notably prestigious forums for performers desir-
ous of displaying their comic talents.
Nightly, within Respondent's several public rooms, co-
medians normally seek prime time performance spots-
between 9:30 and 11:30 p.m. approximately-since those
scheduled spots ordinarily reach the largest, most recep-
tive audiences, and may reasonably be expected to evoke
the biggest responses. Weekend night performance times
are coveted for the same reason. (Comedians with more
performance experience, and demonstrated professional
expertise-whom Ms. Shore considers sufficiently well
qualified-usually receive prime time spot assignments.)
The last scheduled spots on each of Respondent's bi-
furcated weekend shows, however, are normally most
desired. They are ordinarily reserved for headliner per-
formers; namely, comedians of proven stature, with
public reputations considered most likely to promote
Comedy Store patronage.
When comedians have been designated "regular" per-
formers, qualified for scheduled presentation within Re-
spondent's facilities, they may, concededly, win Shore's
subsequent designation for progressively more desirable
time spots. Thus, starting as Monday night potluck ama-
teurs, they may, initially, be privileged to make them-
selves available for standby duty, ready to replace previ-
ously scheduled performers who might not report for
performances. Thereafter, they may be regularly sched-
uled, to perform first within Sunset Boulevard's Belly
Room or Westwood; with their consequent professional
growth and development noted, they may subsequently
be permitted to perform, and likewise participate in
showcase presentations, within Respondent's Original
Room particularly. (As previously noted, comedians
scheduled for Original Room performances may, initial-
ly, be granted spots on less desirable weekday nights,
and less desirable times, opening or closing the night's
presentations. When they have, however, sufficiently de-
veloped their comic skills-within Shore's judgment-
they may be granted weekday prime time performance
spots, and further weekend schedules.)
Thereafter, they may be selected by Respondent's pro-
prietor for service as some night's master of ceremonies;
Shore may refer them to booked college tours; or they
may be featured, pursuant to contract, within her La
Jolla nightclub facility. Eventually, should Respondent's
proprietor consider them worthy, they may currently be
granted performance time as recognized headliners
during "Best of the Comedy Store" shows within Re-
spondent's Sunset Boulevard Main Room, normally
scheduled for weekend nights. Some, conceivably, may
refine and polish their comic skills sufficiently to develop
notable public reputations; when that happens, they may
be considered "guest stars" with recognized public
appeal. (Comedienne Joanne Astrow defined such a
comedian-Mort Sahl-with the comment that, when-
ever he performed, he could "put people in the seats"
simply because of who he was.)
At that point, concededly, comedians will have pro-
gressed, within their chosen field of professional endeav-
or, sufficiently to transcend their presumptive prior de-
pendence of Comedy Store appearances; their subsequent
performances, within Respondent's facilities-which
may, of course, be provided with some frequency-will
clearly be voluntary.
2. Respondent's performance standards
Considerable testimony herein, proffered by General
Counsel's witnesses primarily, deals with Shore's pur-
ported comments and suggestions, relative to various
comedy routines presented by Respondent's scheduled
performers. Those comments, so the record shows, might
sometimes reflect concern with the content of some par-
ticular comedian's monologue; on other occasions, Shore
might vouchsafe suggestions with regard to some come-
dian's comic style, or his methods of presentation.
Summarized briefly, the record herein will, within my
view, support a determination that Shore did not, rou-
tinely, dictate manners and methods of presentation with
respect to Respondent's regularly scheduled comedy per-
formers. However, General Counsel's witnesses have,
within my view, provided generally credible, largely un-
contradicted, testimony, sufficient to establish:
First: That, following comedienne Joann Astrow's
April 1978 and November 1978 auditions, Shore com-
mented that she would prefer to have Astrow "do" dif-
ferent characters, rather than deliver a first-person stand-
up monologue reflective of her personality. Astrow's
credible testimony warrants a determination that she was
"upset" by Shore's volunteered comment; that she con-
sidered changing her act; but that she finally decided to
make no changes.
Second: That, following a Monday night audition by
Improvisational Actor Mark Lonow, Shore told him he
was "very good" but that he had not presented "enough
jokes" during his comic monologues; she "thought" he
should do more "one-line" sallies. Lonow had merely
queried Respondent's proprietor, so his testimony shows,
with respect to whether she felt he could become a
Comedy Store regular; when "taken aback" by her com-
ments, he made no further effort to qualify for Comedy
Store consideration.
Third: That Shore once suggested, directly to comedi-
an George Miller, that he should save "new jokes" for
weekday performances and deliver "tried and true" ma-
terial during his weekend comedy routines. Miller con-
ceded that no Comedy Store representative had ever
proffered suggestions or comments, directly to him, with
regard to how comedians might deal with problems gen-
erated by hecklers or drunken club patrons during per-
formances. (Inter alia, Miller did declare that "Mitzi
never said boo to me about my act really." His com-
ment, in this connection, was volunteered.) He testified,
however, that no comedian performing at Respondent's
facilities could really say "anything" he wanted, since his
comic routines, necessarily, would "have to get" their
desired results.
Fourth: That Respondent's proprietor once told come-
dienne Maureen Murphy to reconstruct her act. Murphy
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had, for some time, presented "impressions" while using
very elaborate costumes and wigs; she had, however,
recast her routine, dropping her use of costumes and
props, telling more jokes, and presenting-primarily-
straight stand-up comedy material. During a conference
in Shore's office, Murphy was told-so comedienne
Elder credibly testified-that Shore had preferred the
comedienne's previously presented act. Murphy and
Shore had discussed what the comedienne could do to
"improve" her routine, and thereby qualify for more and
better time spots; Shore had suggested that she should
take a Comedy Store workshop course, and present
"more impressions" during her performances. (Come-
dienne Archibald recalled a different occasion, presum-
ably well before the June 1979 conference with respect
to which Elder testified, when Murphy had personally
auditioned her revised "straight monologue" routine for
Shore's consideration. Respondent's proprietor had then
told Murphy-so Archibald reported-that "if she did
not put the impressions back in her act" she would not
get Comedy Store performance time.) Murphy had, pur-
suant to Shore's request, modified her routine; she had
supplemented her comedy monologue with "impres-
sions" presented more frequently.
Fifth: That, following a Monday night audition by
comedian Jimmy Whig, Shore had told him-while Ar-
chibald was present-that he would not be given
Comedy Store performance time because she did not like
his act's content. (Whig had performed within Respond-
ent's facilities previously. He had, for some reason, re-
ceived no spot assignments for some time, and had
"reauditioned" for Respondent's proprietor.) The
comedian, so Archibald recalled, had used some vulgar
"four letter words" during his monologue's presentation;
Shore had declared, specifically, that she did not like his
choice of words. The record, considered in totality, sug-
gests-though it may not prove-that Whig subsequently
deleted the language which Shore had found personally
offensive.
Sixth: That Respondent's proprietor gave comedienne
Elder various suggestions-possibly subject to construc-
tion as "instructive criticisms" calculated to help her im-
prove her act-which she followed. (Elder conceded,
however, that Shore's advice had not been given in man-
datory terms, calculated to make her feel constrained to
comply.) Among other suggestions, Respondent's propri-
etor advised Elder to continue working "physically"
during her routine, since she did that well-acting out
situations, using props and interacting with those props,
moving about the stage, and becoming "physically in-
volved" with her stage's space.
Seventh: That, while comedian Tom Dreesen was
never told to modify his act's content, or change it, he
heard Shore tell other performers how to present their
routines. Dreesen declared that, when Shore's sugges-
tions were not followed, there was a "good chance" that
those who disregarded them would not perform at the
Comedy Store thereafter. The comedian recalled one oc-
casion when Respondent's proprietor refused to give a
particular comedian time spots, declaring that he
"worked" too much like George Carlin, another well-
known performer.
Eighth: That a particular Monday night performer, B.
J. Douglas, had been given a good Friday nighttime
spot, during which he had not performed well. Accord-
ing to comedian George Miller, he had failed to generate
audience laughter; Miller testified that he never saw
Douglas in Shore's schedule lineup thereafter.
Ninth: That Respondent's proprietor had advised co-
medienne Dottie Archibald, under circumstances previ-
ously noted herein, not to continue peforming at The Im-
provisation, and to reject booking proposals which
would have provided her with a chance to work Chica-
go's Playboy Club; although Archibald was never subse-
quently booked for Playboy Clubs, she did continue her
Improvisation performances.
Tenth: That, throughout Archibald's working relation-
ship with the Comedy Store, Shore proffered frequent
comments with regard to comedy material which she did
not like, requesting the comedienne to delete it, and to
refrain from presenting it further. She likewise suggested
that Archibald should "punch up" her performances-
namely, put in more jokes; the comedienne declared,
while a witness, that she felt "intimidated" by Respond-
ent's proprietor.
Eleventh: That, when Shore set up a particular show-
case performance schedule, Archibald had not been
listed. The comedienne had pulled some strings, whereby
her participation in Respondent's projected showcase
had-so she was told-been particularly requested by the
television show producer for whom it was being ar-
ranged. When Respondent's proprietor thereafter notified
Archibald that she would be designated a showcase par-
ticipant, the comedienne was told that Shore was herself
making this "opportunity" possible, though Archibald
could not yet be considered ready. In substance, Archi-
bald testified, Respondent's proprietor was "letting [her]
feel" that she (Shore) controlled the situation, and that
the comedienne was being granted a personal favor. On
other occasions, so Archibald testified, when she had re-
quested showcase participation, Shore would schedule
other "favorite" comediennes both before and subsequent
to her prearranged time spot, thereby rendering it more
likely that-because of comparisons-she would not win
favorable notice from the showcase's professional view-
ers.
Twelfth: That comedienne Archibald was once told, by
Shore directly, that another comedienne, Roberta Kent,
had used some comic material, plagiarized both from her
routine and from comedienne Elaine Boozler's act, while
she (Kent) was doing a television show. Respondent's
proprietor further told Archibald, so the latter credibly
testified, that she would bar Kent from the Comedy
Store, and never grant her performance time thereafter,
should Archibald and Boozler declare they wanted such
punishment levied. Archibald, however, proffered no
such request. According to the comedienne, Kent did
not perform at the Comedy Store thereafter; she report-
ed to Archibald, sometime later, that Shore had told her
she could not work there because Archibald and Boozier
had so requested.
Thirteenth: That, when solicited by Archibald for com-
ments, with respect to whether she should engage a busi-
1436
THE COMEDY STORE
ness manager, Respondent's proprietor had advised the
comedienne that such a decision would be a mistake,
since she was not ready. Archibald had nevertheless re-
tained a manager; while a witness, she commented that
this decision, within her view, had marked "the begin-
ning of the end" so far as her relationship with Shore
was concerned.
Fourteenth: That, during her frequent meetings with
Belly Room comediennes, during 1978's latter months
and thereafter, Respondent's proprietor had discussed
Comedy Store policy, with respect to various ways in
which Respondent's Belly Room could be promoted, and
made to "function" well, as a place for women perform-
ers. Shore had told some of those present they were "on
the right track" and that she liked various things 'they
were doing. She had particularly commented favorably
regarding the comedy material used by comedienne
Sandra Blanchard, then a Belly Room performer.
Fifteenth: That, when solicited for comments regarding
a new promotional photograph which comedienne Susan
Sweetzer proposed to use, Shore had reacted negatively.
While a witness, Sweetzer conceded, however, that she
had not procured a substitute photograph, and that her
picture, which Respondent's proprietor had disparaged,
had subsequently been posted on Respondent's Belly
Room wall.
Sixteenth: That Shore, so comedienne Sweetzer testi-
fied, liked to "sit in judgment" with respect to whether
particular comediennes were, or were not, ready to
showcase for specific television shows. Some come-
diennes would directly solicit her judgment in that con-
nection; others might request showcase performance
time, and they would then be given Shore's opinion.
Seventeenth: That Respondent's proprietor had once
declared her concern that comedienne Sweetzer, during
her monologue, was concentrating on subjects-such as
the problems of women in today's society-which audi-
ences were "not ready for" yet, and that Sweetzer's
manner of presentation, with respect to such doubtful
material, was not the most "refined" which she could
have employed. Sweetzer conceded that, before she
became a regular, she had solicited Shore's advice; that
she had conceded Respondent's proprietor was correct;
and that she had subsequently rewritten her act, consist-
ently with Shore's suggestions.
Eighteenth: That comedians have occasionally request-
ed Respondent's proprietor to "critique" their perfor-
mances. Once, when solicited for judgmental comments
by comedian Dailey Pike, Shore had suggested that he
"seemed" nervous, that he seemed to have been "trying
too hard," and that he should try "slowing down" his
presentation.
Further testimonial proffers, demonstrative of Shore's
concern with the quality of particular comedy perfor-
mances at Respondent's Sunset Boulevard and
Westwood facilities, might conceivably be discoverable,
within the record; for present purposes however, those
hereinabove detailed, within my view, provide a suffi-
ciently representative sample.
While a witness, Shore did testify that, in order to
maintain recognized regular status within her Comedy
Store system, comedians must "grow" and "develop"
their comic skills; more particularly, she declared, they
must become funnier. Respondent's proprietor conceded
that she personally decides whether particular comedians
have "grown" and "developed" sufficiently. (When quer-
ied with regard to her qualifications for judgmental deci-
sions in this respect, Shore declared merely that she had
been married to a comedian for many years, and that she
sometimes writes comedy material.) Respondent's propri-
etor conceded further that she sometimes provides
Comedy Store comedians with suggestive comic ideas,
or basic "premises" for comic monologue bits; these con-
stitute specific pieces of comedy material, each con-
cerned with a single subject matter. The record, howev-
er, warrants a determination, which I make, that Shore
has received no compensation from Comedy Store come-
dians for suggesting such premises, and that recipients
have never been specifically directed or required to use
them.
3. The comedians' vocation
Considered in totality, the record herein will, within
my view, support a determination that the vocation prac-
ticed by so-called stand up comedians is generally con-
sidered a distinct occupation within the public entertain-
ment field. And many comedians, particularly those who
perform more or less regularly within Respondent's facil-
ities, do hold themselves out-within their conceived en-
tertainment community, whether local, regional, or na-
tional-as professionals, possessing specialized skills.
(Throughout the present record, performers within the
comedy entertainment field have been described various-
ly as practitioners with a defined "occupation" or "pro-
fession" or "field of work" generally. For present pur-
poses, however, subtle distinctions-which might con-
ceivably be drawn between these several descriptive
terms-may, within my view, legitimately be disregard-
ed. See Nevada Resort Association, et al, 250 NLRB 626,
642, fn. 27 (1980), in this connection. They have, there-
fore, been used interchangeably throughout this Deci-
sion.) Concededly, successful performances within the
field require considerably more than a modicum of spe-
cialized comic skill, which may sometimes complement a
natural "gift of laughter" previously possessed.
Comic skill, so the record shows, may--occasionally-
be developed and refined within "workshops" where
successful practitioners may be consulted, and proven
techniques practiced. Most frequently, however, requisite
skills have been developed, so several witnesses testified,
through "trial and error" processes, during relatively
lengthy learning or practice periods. Such periods may
have compassed performances in semiprofessional talent
shows, small, locally patronized, nightclubs, vaudeville
shows, or hotel show lounges, sometimes coupled with
performances as subordinate "opening" acts, for headlin-
er or guest star performers in more prestigious show-
rooms. For some comedians, so the record shows, per-
formance time within Respondent's two Los Angeles
clubs had heretofore provided, and currently provides,
learning or practice opportunities required for their pro-
fessional growth and development.
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Comedians spend considerable time preparing their
routines, practicing, and refining their performance tech-
niques. Most of them conceive, write, and personally
revise their own comedy material. (Further, some may,
concurrently, write comedy material-jokes, one-liners,
or partial routines-for sale to fellow comedians.) They
may, however, likewise purchase additional jokes, or
portions of some comedy routine, crafted by others.
Their preparations for performance-writing, revising
their monologues, and practicing their delivery-normal-
ly take place at home; certainly, they rarely take place
within the Comedy Store's physical confines.
Each comedian customarily considers himself the pro-
prietor of his particular comic routine; Respondent, so
the record shows, claims no right of ownership with re-
spect thereto. Several comedians, who testified persua-
sively herein, conceive of themselves as performers with
a particular, personal "style" which-since it reflects
their personality and determines their manner of per-
formance-sets them apart from other comedians. The
comedians themselves, normally without the participa-
tion of club proprietors connected with their various
places of performance, choose the particular "styles"
which they desire to project. (General Counsel's witness,
Lonow, conceded that comedians usually prepare stand-
up routines and methods of presentation which-within
their personal, independent judgment-will best promote
their realization of particular career goals.)
Thus, certainly in the first instance, Respondent's man-
agement representatives herein would have little "input"
with regard to some regular performer's choice of per-
formance style; whether Respondent's proprietor, subse-
quently, might persuasively suggest or compel changes
with respect thereto may depend on circumstances, such
as those noted previously within this Decision.
A stand-up comedian's recognized occupation-
namely, public performances which involve the presenta-
tion of comic monologues-may concededly be distin-
guished readily from Respondent's business; clearly,
Shore may, most reasonably, be considered primarily a
producer or impresario, perhaps a counselor or precep-
tress, and certainly a provider of public entertainments,
rather than a public comedy performer.
Most comedians recognized as regular Comedy Store,
performers-save, perhaps, for some relative newcomers
within the comedy field-have, concededly, established
reputations as public entertainers apart from their
Comedy Store connection. And many of them-so the
record herein persuasively suggests-have performed,
pursuant to professional contracts, for providers of
public entertainment other than Respondent herein. (Var-
ious recognized comedians have concededly per-
formed-some as stand-up comics, some as conventional
actors filling comedy roles, and some in various other ca-
pacities-for motion picture and television producers, for
radio show producers and for producers of stage presen-
tations.) In some cases, their performances for such en-
tertainment providers have coincided, or run concurrent-
ly, with their recurrent Comedy Store appearances;
sometimes, however, their preoccupation with various
other professional commitments may have constrained
them to forgo "regular" requests for stand-up comedy
performance time to Respondent's several Comedy Store
stages.
When preparing for careers, and pursuing them within
the comedy field, professed comedians normally deter-
mine, utilize, and publicize their own stage names. Some
may publicize their talents, or report their availability for
professional engagements, within trade publications. Fur-
ther, some-their number never specified for the present
record-may retain managers to handle their business af-
fairs, together with talent agents qualified by training, ex-
perience, and professional connections to help comedians
procure professional engagements. They may-and many
presumably do-maintain special business telephone con-
nections, or retain telephone answering services, calculat-
ed to facilitate their pursuit of public careers apart from
Comedy Store performances.
When preparing their personal or professional Federal
and state income tax returns, comedians may-and many
presumably do-deduct their yearly expenditures for
publicity and various telephone services, together with
whatever costs they may have sustained while retaining
professional talent agents and managers, considering
them as business expenses. In this connection, shortly,
their practices comport with bookkeeping and tax com-
putation practices conventionally followed by self-em-
ployed businessmen.
B. Discussion and Conclusions
1. The legal status of professional comedians
a. Applicable legal principles
As previously noted, Section 2(3) of the Act, as
amended, provides-in relevant part-that the term "em-
ployee" should not be construed to compass persons
having "independent contractor" status. Congress did
not, specifically, define that status, however, within its
legislative enactment. When amending Section 2(3) par-
ticularly to exclude independent contractors from statu-
tory coverage, Congress declared its purpose, rather, to
overrule the substantive holding in NLR.B. v. Hearst
Publications, Inc., 322 U.S. 111, 124-130 (1944), insofar as
that decision derived from a premise that principles of
agency were not dispositive in determining whether an
individual was an "employee" for purposes of the Act.
Congress enacted the change "to make it clear" that the
term "employee" was "not meant to embrace persons
outside that category under the general principles of the
law of agency." 93 Cong. Rec. 6441-42 (1947). (See, fur-
ther, H. Rep. 245, 80th Cong., Ist sess. 18 (1947), I Leg.
Hist. 309 (LMRA), which noted that):
An "employee" according to all standard dictio-
naries, according to the law as the courts have
stated it . . . means someone who works for an-
other for hire. .... In the law, there always has
been a difference, and a big difference, between
"employees" and "independent contractors." "Em-
ployees" work for wages or salaries under direct su-
pervision. "Independent contractors" undertake to
do a job for a price, decide how the work will be
done, usually hire others to do the work, and
1438
THE COMEDY STORE
depend for their income not upon wages, but upon
the difference between what they pay for goods,
materials, and labor and what they receive for the
end result, that is, upon profits.
Consistently with these congressionally proclaimed
views, this Board has-with judicial concurrence-rou-
tinely undertaken to apply general agency principles,
when distinguishing between employees and independent
contractors. N.LR.B. v. United Insurance Company, 390
U.S. 254, 256 (1968), and cases therein cited.
In discharging this function, the Board must, necessar-
ily, determine the applicability of concededly "broad
statutory language" with respect to various fact patterns.
Bayside Enterprises, Inc. v. N.LR.B., 429 U.S. 298, 304
(1977); more particularly, by applying general agency
principles, it must "determine in the first instance who is
an employee" for statutorily defined purposes. N.L.R.B.
v. E. C. Atkins & Company, 331 U.S. 398, 403 (1947).
Whenever the Board has done so, its factual and conclu-
sionary determinations have normally been considered
dispositive when found to possess "warrant in the
record" plus some reasonable basis in law.
(1) The right of control test
"No one means all he says, and yet very few say all
they mean, for words are slippery and thought is
viscous." ["The Education of Henry Adams," Ch.
31.]
Both this Board and the courts have commonly relied
upon various criteria set forth within Restatement of
Agency 2d, Section 220 (1958), when required to distin-
guish statutorily protected employees from independent
contractors excluded from the Act's coverage. That sec-
tion's principal text provides the following guides:
220. Definition of a Servant
(1) A servant is a person employed to perform
services in the affairs of another and who with re-
spect to the physical conduct in the performance of
the services is subject to the other's control or right
to control.
(2) In determining whether one acting for an-
other is a servant or an independent contractor, the
following matters of fact, among others, are consid-
ered:
(a) the extent of control which, by agreement,
the master may exercise over the details of the
work;
(b) whether or not the one employed is en-
gaged in a distinct occupation or business;
(c) the kind of occupation, with reference to
whether, in the locality, the work is usually done
under the direction of the employer or by a spe-
cialist without supervision;
(d) the skill required in the particular occupa-
tion;
(e) whether the employer or the workman sup-
plies the instrumentalities, tools, and the place of
work for the person doing the work;
(f) the length of time for which the person is
employed;
(g) the method of payment, whether by the
time or by the job;
(h) whether or not the work is a part of the
regular business of the employer;
(i) whether or not the parties believe they are
creating the relations of master and servant; and
(j) whether the principal is or is not in busi-
ness.
And, consistently therewith, this Board's inquiries have
traditionally focused-in the first instance-upon the
nature and extent of whatever control may have been re-
served, particularly with respect to details of the work,
by the person for whom the work has been, or will be,
done. N.L.R.B. v. Warner, 587 F.2d 896, 899 (8th Cir.
1978); Seven-Up Bottling Company of Boston, Inc. v.
N.LR.B., 506 F.2d 596, 598 (Ist Cir. 1974); Joint Council
of Teamsters, No. 42 [Associated Independent Owners-Oper-
ators] v. N. LR.B., 450 F.2d 1322, 1326 (D.C. Cir. 1971);
Associated Independent Owner-Operators, Inc. v. N.LR.B.,
407 F.2d 1383, 1385 (9th Cir. 1969). Accord: N.L.R.B. v.
Phoenix Mutual Life Insurance Co., 167 F.2d 983, 986
(7th Cir. 1948). Within the case last cited, the Seventh
Circuit Court of Appeals declared that:
[T]he employer-employee relationship exists when
the person for whom the work is done has the right
to control and direct the work, not only as to the
result accomplished by the work, but also as to the
details and means by which that result is accom-
plished ....
Conversely, when the person for whom work has been,
or will be, done reserves merely the right to control the
result sought to be achieved, other persons retained for
its performance will be considered "independent" con-
tractors. Comparable formulations, recapitulating this
guiding principle's determinative significance, can be
found in numerous Board decisions, some of them con-
cerned, specifically, with performers within the public
"entertainment" field. See, e.g., Puerto Rico Hotel Associ-
ation, et at, 259 NLRB 429 (1981); Capital Parcel Deliv-
ery Company, 256 NLRB 302, 303, fn. 3 (1981); Kentucky
Prince Coal Corporation, 253 NLRB 559, 560 (1981);
Nevada Resort Association, 250 NLRB 626, 642-645
(1980); City Cab Company of Orlando. Inc., 232 NLRB
105, 107, enfd. 628 F.2d 261 (D.C. Cir. 1980); L C.
Sinor, 168 NLRB 467, 468 (1967); National Freight, Inc.,
146 NLRB 144, 146 (1964), and cases therein cited.
Concededly, however, the common law "right of con-
trol" test, noted, cannot be relied upon simplistically or
mechanically. This Board has commented, with judicial
concurrence, that cases concerned with a given person
or group's putative status as statutory "employees" or
"indpendent contractors" may frequently turn on fine
factual distinctions; thus, determinations with regard
thereto will, ordinarily, require careful analysis coupled
with balanced assessments, pursuant to which "all of the
factors [bearing upon] the relationship" have been con-
sidered, and weighed, with no single factor deemed deci-
1439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive. See Associated General Contractors of California v.
N.L.R.B., 564 F.2d 271, 279 (9th Cir. 1977); N.L.R.B. v.
United Insurance Co., supra at 258, in this connection.
In short, despite the common law right of control
test's purportedly simple formulation, decisions in these
"employee" versus "independent contractor" cases will,
in most cases, depend upon their peculiar, particular
facts. There can be "no shorthand formula or magic
phrase" relied upon to resolve questions of independent
contractor or statutory employee status. See "Black's
Law Dictionary," p. 298; compare Mid-Continent Petro-
leum Corp. v. Vicars, 221 Ind. 387, 47 N.E. 2d 972. Each
case's "total factual context" must always be considered,
with due regard, however, for pertinent common law
agency principles.
In this connection, further, persuasively relevant
Board and court decisions have both noted that-when
factual determinations, within each case, have been made
with regard to some claimed right of control's nature
and scope-findings with respect to that right of con-
trol's existence, rather than findings dealing with its spe-
cific exercise merely, will be considered dispositive. See
N.L.R.B. v. Cement Transport, Inc., 490 F.2d 1024, 1027
(6th Cir. 1974), and cases therein cited; N.L.R.B. v.
Steinberg and Company, 182 F.2d 850, 857 (5th Cir.
1950). Accord: N.L.R.B. v. Warner, supra; likewise,
N.L.R.B. v. Phoenix Mutual Life Insurance Co., supra,
may be noted in this connection.
(However, determinations with regard to such a right
of control's existence will-in many cases-necessarily be
bottomed upon testimonial or documentary evidence
proffered to establish particular "instances" wherein
some readily cognizable controls, clearly derived from a
claimed or conceded right, have actually been enforced, or
proclaimed as enforceable, by the person for whom some
service has been performed, while such proclaimed con-
trols have been, concurrently, specifically acknowledged,
acquiesced in, or complied with, by the person or per-
sons rendering services. See, e.g., Capital Parcel Delivery
Company, 256 NLRB 302 (1981), and Kentucky Prince
Coal Corporation, 253 NLRB 559 (1980), in this connec-
tion. Absent such proof, whereby some right of control's
existence may have been directly demonstrated, that
right's reality would, presumably, have to be deduced
reasonably from a congeries of collateral "specific con-
siderations" deemed "significant and sometimes control-
ling" within the common law's purview, which may per-
suasively "indicate" the challenged right's presence. See
Standard Oil Company, 230 NLRB 967, 968 (1977), in
this connection.)
In some cases, however, jurisprudentially recognizable
bases sufficient to warrant determinations regarding the
claimed right's existence may be difficult to designate
precisely. Further, the degree of control which could-or
should-be considered sufficient to warrant a trier of
fact's determination that a cognizable employer-employ-
ee relationship exists, may-in some cases-be very at-
tentuated. Thus, the dispositive utility of the common
law "right of control" test may, sometimes, be difficult
to recognize precisely.
For example: The Restatement's authors, within Sec-
tion 220, Comment (d) on subsection 1, point out that-
in some cases which involve persons customarily consid-
ered employees-there may be consensual understandings
that their conceded employer shall not, manifestly, exer-
cise control. (E.g.: Full-time cooks will, normally, be
considered servant-employees, though all parties under-
stand that their employers will exercise no control, in
practice, over their cooking.) Moreover, particular types
of control, some particular control's manner of assertion,
and specific occasions which may call for such a control's
assertion or possible implementation, may vary between
industries or differentiated fields of work, sometimes
within a given field of work, and sometimes with refer-
ence to various tasks with respect to which performance
may be required therein. Thus, reasonably justifiable de-
terminations with regard to whether a claimed right to
control-sufficiently definable to dispose of questions
presented, within a given record, with regard to some
particular group's "employee" or "independent contrac-
tor" status-really "exists" can be most elusive.
(2) The right of control test further considered
In law, cognizable "rights," such as the right of con-
trol with which we are concerned herein, have some-
times been defined as well-founded claims. Alternatively,
they have been described, generally, as "powers" to
function freely. Yet again, they have been characterized
as "powers, privileges, faculties or capacities" considered
resident in one person, whereby he or she may-with the
concurrence and help of the state-control the conduct
of other persons, or demand their satisfaction of defined
obligations. See "'Black's Law Dictionary," p. 1189, and
"Bouvier's Law Dictionary," pp. 2960-62, for some fur-
ther discussion.
What renders a particular claim then worthy of being
considered well founded? Whence come those recog-
nized powers, privileges, or capacities pursuant to which
one person may control some other person's conduct, or
generate some significant "impact" bearing upon their
capacity to function? Generally speaking, claims of
power, privilege, or capacity have been said to derive
their basic sanction from the consciousness of the com-
munity. A societal consensus, in short, renders a claim
well founded; thus "rights" may realistically be consid-
ered generally acknowledged claims. In society, such gen-
erally acknowledged claims have, when necessary, been
given specific legal recognition or protection. Certain
powers, privileges, and preserved immunities have been
recognized, defined, and given protection in constitu-
tions, statutes, and decisional principles laid down within
the framework of common law; obviously, then, such
powers, privileges, capacities, and immunities may there-
after be further created, defined, or limited by express
contractual arrangements subject to judicial recognition
and confirmation.
For present purposes, however, we are-clearly-con-
cerned, rather, with putative "rights" claimed, defined,
and presumably recognized, generally, within a given
community, consistently with less formal, and therefore
less precise, criteria. Since the common law's generally
phrased "right of control" test may conceivably be
deemed dispositive with regard to particular questions
1440
THE COMEDY STORE
presented within the present record, we are concerned
with claims of right practically manifested, and presum-
ably bottomed, primarily on custom, usage, purely tacit
understandings, or, conceivably, some consensually rec-
ognized social contract. And General Counsel's basic
contention herein-that Respondent's proprietor,
throughout the period with which this case is concerned,
maintained a relationship, with those comedians who
performed "regularly" within Comedy Store facilities,
bottomed upon certain "rights" which she purportedly
claimed, by virtue of her presumptively dominant posi-
tion therein, and which Respondent's performers pur-
portedly acknowleged, because of their presumptively de-
pendent positions-will, therefore, require a review of
customary, generally recognized practices and usage,
within Respondent's Los Angeles facilities particularly,
which may arguably suffice to define and characterize
the relationship noted.
(3) Considerations of economic reality
In this connection, however, General Counsel sug-
gests, within his brief, that-since Shore allegedly main-
tained a relationship with Respondent's designated "regu-
lar" performers, which, by virtue of Comedy Store
custom, practice, and usage, compassed a pervasive
system of controls, while it lacked various important at-
tributes generally considered persuasively indicative of
conventionally defined independent contractor status-
those performers should be, alternatively, considered
"employees" statutorily protected, as a matter of eco-
nomic reality. General Counsel's reference to this partic-
ular litmus test-separately and apart from the right of
control test-for resolving disputed questions relative to
claimed "employee" versus "independent contractor"
status, reflects his reliance upon the Supreme Court's
stated criterion for determining such questions, particu-
larly when they require resolution in connection with
Social Security Act litigation. United States v. Silk, 331
U.S. 704, 712-714 (1947); Bartels v. Birmingham, 332
U.S. 126, 130-131 (1947). Within its first decision cited,
the Court declared that:
The problem of differentiating between [an] em-
ployee and an independent contractor, or between
an agent and an independent contractor, has given
difficulty through the years before social legislation
multiplied its importance. When the matter arose in
the administration of the National Labor Relations
Act, we pointed out that the legal standards to fix
responsiblity for acts of servants, employees or
agents had not been reduced to such certainty that
it could be said there was "some simple, uniform
and easily applicable test." The word "employees,"
we said, was not there used as a word of art, and its
content in its context was a federal problem to be
construed "in the light of the mischief to be correct-
ed and the end to be attained." We concluded that,
since that end was the elimination of labor disputes
and industrial strife, "employees" included workers
who were such as a matter of economic reality. The
aim of the Act was to remedy the inequality of bar-
gaining power in controversies over wages, hours
and working conditions.
The Court's quoted references to its prior decision, deal-
ing with a similar problem under the National Labor Re-
lations Act, derive from N.LR.B. v. Hearst Publications,
previously herein noted; that prior decision's rule, so the
Court stated, should be considered applicable, likewise,
when construing social security legislation.
Shortly thereafter, the Court, within a related case-
which dealt with social security coverage for band-
leaders and band members-referred to, recapitulated,
and refined its stated Silk principle. Bartels v. Birming-
ham, supra, 332 U.S. at 130-131. Therein, the Court de-
clared that:
[W]e held that the relationship of employer-employ-
ee, which determines the liability for employment
taxes under the Social Security Act, was not to be
determined solely by the idea of control which an
alleged employer may or could exercise over the
details of the service rendered to his business by the
worker or workers .... [I]n the application of
social legislation employees are those who as a
matter of economic reality are dependent upon the
business to which they render service.
Further, however, the Court commented that-when de-
terminations must be made regarding such dependency-
the permanency of the relation, the skills required in con-
nection with particular services rendered, the identity of
those persons who invested in facilities required for the
work's performances, and the identity of those persons
who could enjoy "opportunities for profit or loss" from
the services performed, should-together with other fac-
tors-be deemed collaterally relevant considerations,
which triers of fact must weigh. Cf. Ringling Bros-
Barnum & Bailey Combined Shows. Inc. v. Higgins, 189
F.2d 865 (2d Cir. 1951), and Club Hubba Hubba v.
United States, 239 F.Supp. 324 (D.C. Haw. 1965), in this
connection.
It should be noted, however, that Silk was decided
shortly before the Labor Management Relations Act's
final passage, and that the Supreme Court's subsequent
Bartels decision issued concurrently with the statute's en-
actment. Cognizant of that chronology, this Board de-
clared-sometime later-that, consistently with a de-
clared congressional intent regarding the construction to
be given the Act's newly modified Section 2(3) defini-
tion, it has routinely followed the usual tests for deter-
mining "employee" versus "independent contractor"
status laid down in general agency law, and has, there-
fore, regularly applied the common law right of control
test hereinabove noted. Deaton Truck Lines, Inc., 143
NLRB 1372, 1377 (1963). The Board's decision did, nev-
ertheless, report its determination that Deaton exercised
a degree of control, over several classes of retained
truckdrivers, sufficient to support a finding that they
were Deaton's employees "both in law and as a matter of
economic reality." On petitions to review, denied on other
grounds, the Court of Appeals for the Fifth Circuit con-
curred, 337 F.2d 697, 698-699 (1964). Despite its broadly
1441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phrased conclusionary comment, however, the Board's
determination regarding the employee status of Deaton's
drivers clearly derived-primarily-from specific findings
regarding the degree of control which that trucking firm
then exercised with regard to drivers' services; the Board
found the firm's controls concerned, not merely with the
business "results" which drivers' services should pro-
duce, but likewise with the "means" which they would
be required to utilize while providing trucking services.
(In this connection, the Board characterized its decision
as consistent, not merely with a congressional mandate,
but, likewise, with the Supreme Court's Hearst Publica-
tions dictate that social legislation should be construed
"in the light of the mischief to be corrected and the end
to be attained." Deaton's holding, therefore, could, argu-
ably, be deemed reflective of a determination that the
common law right of control test, when relied upon to
resolve doubtful cases, should be applied with due regard
for those "economic and policy considerations" which
may, legitimately, serve to infuse Section 2(3)'s simple
"employee" definition with meaning. See Allied Chemical
& Alkali Workers of America, Local Union No. I v. Pitts-
burgh Plate Glass Co., Chemical Division, 404 U.S. 157,
165-168 (1971). However, the perceived dispositive sig-
nificance of the right of control test-rather than collat-
eral determinations regarding the concerned drivers' de-
pendency "as a matter of economic reality" merely-
would seem to have, basically, dictated the Board's
result.)
With matters in this posture, therefore, posited consid-
erations of economic reality alone cannot be herein relied
upon, consistently with the statute and relevant deci-
sional principles, to justify claimed "employee" status for
Respondent's designated "regular" comedy performers.
More particularly, General Counsel's presumptive con-
tention previously noted-that some relevant congeries
of factors should be considered sufficient, standing alone,
to warrant determinations that comedians with recog-
nized "regular" status, within the Comedy Store system,
have been and remain somehow "economically depend-
ent" upon Shore's business, and that therefore, they
should, without more, be considered vested with "em-
ployee" status for present purposes-cannot be consid-
ered well founded. No defined "economic reality" test,
per se, should be applied, or be deemed dispositive,
herein.
b. Entrepreneurial considerations
When Section 2(3) of the Wagner Act was amended
by the Labor Management Relations Act, 1947, Congress
defined the basic legislative distinction between employ-
ees and independent contractors with a simple, dichoto-
mous formulation. Employees work for wages or sala-
ries, under direct supervision. Independent contractors,
however, maintain their own businesses; while providing
"personal" services or workmen hired for the purpose,
they handle specific "jobs" for set prices, decide how the
work required will be performed, meet their direct costs
for goods, materials, and labor, and take on normal busi-
ness risks while seeking anticipated profits. In other
words, they function as entrepreneurs, conventionally.
Within the broad spectrum of American business en-
terprise, however, those relationships which have devel-
oped between businessmen, or nominal consumers who
desire services performed, and their service providers-
whether specifically negotiated, consensually, or bot-
tomed simply upon recognized customs, generally ac-
knowledged business practices, routine usage, or tacitly
"understood" reciprocal commitments-have taken
many, infinitely varied, forms. Hence, the need for some
generally applicable test, formula, or set of criteria-such
as the right of control test which has been herein consid-
ered-whereby those relationships reasonably deemed
worthy of characterization as "employer-employee" rela-
tionships may be distinguished from those deemed prop-
erly cognizable as "businessmen-independent contractor"
relationships.
The common law right of control test, normally, fo-
cuses upon relationships formed, maintained, and directly
manifested with reference to work performed within a
given workplace; that, of course, is where controls-
when they are invoked and consensually acknowl-
edged-would normally be exercised.
(Thus, when this Board, backstopped by the courts,
discusses powers, privileges, faculties, and capacities
which-when exercised by some putative employer-re-
flect a broadly defined right of control's existence, it
notes, inter alia, such matters as the manner in which the
relationship between the concerned parties was estab-
lished; the terms of their respective "contractual" com-
mitments, and, particularly, whatever reserved rights the
putative employer may legitimately claim to change
those contractual arrangements unilaterally; plus the pu-
tative employer's claimed and conceded rights to direct
the procedures which service providers must follow on
the job while rendering service, to require their compli-
ance with dress codes, and to define and regulate their
hours of work. Cf. City Cab Company of Orlando, Inc.,
supra. Further it notes record proofs which may reveal,
inter alia, that a putative employer provides the place
wherein particular work or service must be performed,
that service providers are compensated for their time,
rather than by the job; that their services may have been
retained for some indeterminate period, rather than for
the time required to complete a given task; that their pu-
tative employer supplies the tools, materials, and further
"instrumentalities" required for their work's perform-
ance; and that their services constitute a clearly "essen-
tial" part of their putative employer's regular business
operations.)
When the Board-consistently with its mandate to
consider the "total factual context" with reference to
which some questioned relationship must be catego-
rized-looks to factors presumptively devoid of any
direct connection with specific work performance, the
Agency remarks them and weighs their significance, so
the cases show, primarily because such collateral facets
of the total situation may, conceivably, provide some
bases for reasonable inferences, regarding a broadly
gauged right of control's nonexistence, or possible pres-
ence.
1442
THE COMEDY STORE
In many cases, however, this Board has, with judicial
concurrence, focused-rather-upon various factors
characterizing a complex situation presented for consid-
eration which, within -its view, have themselves pointed
to some questioned group's cognizable "independent con-
tractor" status. These factors have normally compassed
discrete facets of the total situation presented-apart
from those related directly to work performance-which
persuasively suggest entrepreneurial characteristics
chargeable to particular service providers. See, for exam-
ple, Hugh Major, d/b/a Hugh Major Truck Service, 124
NLRB 1387, 1389 (1959), in this connection. Among the
factors noted-within Board decisions dealing with a va-
riety of business and service enterprises-we find: The
fact that service providers, whose status must be deter-
mined, follow some distinct occupation; the fact that
their successful pursuit of that occupation may require
particular skills; the fact that such service providers,
themselves, normally supply the tools or various "instru-
mentalities" required for performance; the fact that their
services may be retained for limited periods, merely, re-
quired for the completion of defined tasks, rather than
for periods of indeterminate duration; the fact that they
may not be required to accept proffered work, and retain
their freedom to render similar services for others; the
fact that such service providers may receive specifically
negotiated compensation paid "by the job" rather than
compensation computed at generally applicable rates,
paid for whatever periods of time their performance of
work might require; and the fact that they retain free-
dom to make decisions which may entail risks of loss, or
generate opportunities for profit,
When considering cases concerned with performers in
the public entertainment field, particularly, this Board
has recurrently noted numerous circumstances which,
when present, persuasively suggest-within its view-
their enterpreneurial status, since, presumably, such cir-
cumstances may inferentially reveal their putative em-
ployer's minimal, or nonexistent, right of control over
the particular "manner or means" whereby their services
are provided. Among these circumstances, Board deci-
sions note: The fact that particular groups of performers
may compass numerous persons with substantial experi-
ence, gained apart from performances for some single
putative employer; the fact that their putative employer
may claim no right to proscribe or limit their perform-
ance of services for others, and the fact that they may,
frequently, provide "freelance" services for other public
entertainment producers; the fact that, while making
themselves available for "freelance" work, some of them
may maintain business telephones, retain answering serv-
ices, and publicize their talent within local trade publica-
tions, presumably to facilitate their procurement of such
work; and the fact that, while performing elsewhere,
they are not required to-and do not-identify them-
selves with a putative "regular" employer. See Century
Broadcasting Company, d/b/a WFMF, 198 NLRB 923,
924 (1972) (radio station announcers). Further, the Board
has, in some cases, noted: The fact that performers,
themselves, control the "manner and means" of their per-
formance, since-without dictation or direction from
their putative employer-they prepare the specific "ma-
terial" required for that performance's presentation, and
may cut down, expand, or modify such material when
circumstances require its modification: the fact that per-
formers may, customarily, supply their own costumes,
makeup when required, and necessary props; and the fact
that-presumably pursuant to consensual understanding
and/or tacit acquiescence-the putative employer neither
provides payroll deductions for Federal income and
social security taxes, nor workmen's compensation insur-
ance coverage for performers. See Strand Art Theatre,
Inc., 184 NLRB 667, 668-669 (1970) (theatrical variety
artists), and American Guild of Musical Artists, AFL-CIO
(National Symphony Orchestra Association), 157 NLRB
735, 736, fn. 1, 740-742 (1966) (ballet dancers), in this
connection.
With reference to these cases, the Board has, some-
times, found record evidence which-within its view-
fails to establish, preponderantly, that some putative em-
ployer really "has the right to control the manner and
means" whereby particular entertainers provide their
services. In other cases, however, Board decisions have
reflected determinations, rather, that superficially persua-
sive testimonial and/or documentary evidence, proffered
to demonstrate such a broadly gauged right of control's
existence or exercise, should be considerd overborne by
countervailing proofs which-within the given case's
total factual context-persuasively reveal that the per-
formers concerned enjoy a degree of independence in
connection with their public presentations, carry defined
responsibilities, and assume risks normally associated
with entrepreneurs, rather than with employees.
With such determinations reached, this Board has-
particularly within the cases noted-concluded that
members of the performer's group, whose legal status
had been subjected to review, should properly be consid-
ered "independent contractors" rather than employees
statutorily protected.
c. The relationship between Respondent and regular
Comedy Store performers
With due regard for various considerations herein-
above noted, questions raised within this record, regard-
ing the legal status, for present purposes, enjoyed by co-
medians considered qualified for regularly scheduled
Comedy Store performances, may now be resolved.
(1) Respondent's right of control with regard to
their manner and methods of performance
"Whoever can do as he pleases, commands when
he entreats." (Pierre Corneille, "Sertorious" Act IV,
Scene 2.]
Within their brief, General Counsel's representatives
note, cogently, that, following their "audition" perfor-
mances, Respondent's proprietor, Shore, routinely deter-
mined which "Monday night" or "pot luck" comedy
performers would be considered qualified for "regular"
status, and which qualified "regulars" would, thereafter,
be granted performance time on Comedy Store stages.
Likewise, she determined precisely where and when
their scheduled performances would be given.
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clearly, determinations with respect to whether Re-
spondent's proprietor-when she discharged these partic-
ular functions-was, realistically, hiring comedians to
provide services as employees, or was merely engaging
some independent contractors who would be provided
with recurrent opportunities, thereafter, to practice their
distinct occupation within Comedy Store facilities, will
depend upon this Board's critical assessments, regarding
the general character of the relationship created thereby.
In this connection, some conclusions would seem re-
quired, certainly, regarding the character of the relation-
ship generated and maintained, between Shore and Re-
spondent's designated regular performers, before the
Comedy Store's current pay policy, for them, was initiat-
ed. Respondent's customary practice, with respect to
managing public entertainment presentations, before that
enterprise's regular comedians determined to withhold
their services, must therefore be reviewed. (Within their
brief, General Counsel's representatives have noted
that-subsequent to Respondent's execution of the May
3, 1979, settlement with CFC/AFC previously referred
to herein-certain designated regular performers, though
not all, were paid predetermined sums for their sched-
uled performances; that these performers were not, how-
ever, free to negotiate, thereafter, regarding such com-
pensation, based on their particular performance's popu-
lar success, or their recognized public reputation; that
they normally limited to single "set" or "spot" perfor-
mances during any given evening's Comedy Store pro-
gram; and that any post-settlement grievances which
they chose to press were, consensually, reserved for
"handling" through CFC/AFC representation, rather
than through direct, personal negotiations with Respond-
ent's proprietor. General Counsel's representatives, how-
ever, proffer no contention that these post-settlement de-
velopments-themselves-sufficed to transform a previ-
ously equivocal relationship into some sort of cognizable
"employer-employee" connection. Rather, they con-
tend-merely-that such post-settlement modifications,
which significantly strengthened the parties' previously
cognizable relationship, should be considered confirmato-
ry of that antecedent relationship's statutorily protected
character. Thus, the concern professed, within his brief,
by Respondent's counsel-that General Counsel might
be proffering a legally and logically "impossible" conten-
tion, bottomed upon the purported participation of Respond-
ent's designated regular performers in concerted activity,
whereby they sought the right to become employees-need
not be herein considered.)
The fact, however, that Respondent's regular perform-
ers, prior to their March-May 1979 work stoppage, re-
ceived no monetary compensation for services ren-
dered-though conceivably suggestive-hardly provides
persuasive justification for a determination that no em-
ployer-employee relationship had, theretofore, been cre-
ated. See Restatement of Agency, 2d, Section 220, sub-
section (2), comment (j); compare Section 225, comment
(c). People who provide services voluntarily, without an
agreement for, or expectation of, financial reward, may
still merit characterization as employees, when putative
employers, who may have solicited or received benefits
from their service, have demonstrably consented, or pro-
vided some manifestation of consent, that their relation-
ship should, realistically, be so construed.
Further, the fact that Respondent's designated regular
performers, desirous of Comedy Store work, may have
been-personally-required to solicit specific perform-
ance time assignments weekly, and provide their sched-
uled spot services, thereafter, based upon Shore's lineup
lists prepared for the current calendar week, merely, will
not-alone-warrant a conclusion that they should be
considered independent contractors. (See Restatement of
Agency, 2d, Sec. 220, subs. (2), comment 0(). When
short-term services are required-particularly in connec-
tion with work which requires some degree of skill-
service providers, concededly, may be less apt to consid-
er themselves subject to control with respect to work de-
tails; such jobs are, conventionally, more likely to be
considered their jobs, than jobs controlled by the person
or persons retaining their services. Workers engaged for
sporadic short-term tasks, nevertheless, may still be
deemed "employees" within their particular situation's
total factual context.)
With due regard for the statute, this Board has long
recognized regular part-time service providers, and
casual workers with some reasonable expectation of regu-
lar or recurrent work-together with intermittently sum-
moned "on call" service providers-as statutory employ-
ees, whenever their total situation persuasively suggests a
putative employer's broadly gauged right of control re-
garding the details of their work. Compare National
Opinion Research Center, 187 NLRB 583, 584-585 (1970);
Tamphon Trading Company, Inc., 88 NLRB 597 (1950),
citing B and C Stevedoring Co., Incorporation, 88 NLRB
321, 322-323 (1950), and American Fruit and Steamship
Company, 88 NLRB 207, fn. 1 (1950), in this connection.
See, likewise, United Fuel Gas Company, 50 NLRB 22,
23-24 (1943); Southern California Gas Company, 10
NLRB 1123, 1140-41 (1939); Fedders Manufacturing
Company, 7 NLRB 817, 823-824 (1938). In Todd Ship-
yards Corporation, 5 NLRB 20, 36 (1938), the Board
found casual workers who "shaped up" daily when pre-
senting themselves for possible work assignments-with
no assurance that they would be selected-nevertheless
worthy of classification as statutorily covered workmen.
Viewed realistically, Respondent's practice-whereby
designated regular comedy performers were considered
privileged to telephone Shore's secretary, on Mondays,
to report their performance availability, while requesting
some scheduled spot placement later within that particu-
lar calendar week-likewise clearly constituted, and still
constitutes, nothing more than a sophisticated "shape up"
system. Pursuant thereto, however, comedians desirous
of Comedy Store performance time have merely been re-
quired to convey their desires telephonically, rather than
being required to report and foregather in semicircular
groups-like waterfront stevedores-for Shore's personal
consideration. Mindful of this Board's several determina-
tions, noted, that providers of regular part-time service,
and casual workers whose less-than-regular but recurrent
engagements persuasively suggest their ongoing relation-
ship with a particular business enterprise, may qualify for
statutory protection, we therefore may-tentatively at
1444
THE COMEDY STORE
least-find Respondent's defined pool of comedy per-
formers, whom Shore concededly considers sufficiently
competent for regular schedule placement, likewise quali-
fied for statutory "employee" designation.
As noted, the fact that Comedy Store performers-
prior to their concerted withdrawal of services-re-
ceived no monetary compensation for performances,
should not, alone, dictate a conclusion herein that they
were not "employees" for statutory purposes. Designated
regular comedy performers, who were recurrently grant-
ed Comedy Store scheduled time spots, were-realistical-
ly-compensated, I find, though their cognizable re-
wards may not have been immediately bankable.
Shore's relationship with Respondent's candidate corps
of comedy performers was-so the record clearly
shows-highly personal; her dealing with such perform-
ers-I find-were bottomed upon, and colored by, per-
sonal judgments. Essentially, within her discretion, she
rewarded them-not by contractually defined compensa-
tion payments-but, rather, by subjective judgmental de-
cisions, calculated to confer status, which, as the record
persuasively shows, they prized.
Initially, Respondent's proprietor-so I find-claimed
powers of designation, which she exercised routinely,
whereby comedians whom she, herself, considered suffi-
ciently skilled were privileged to solicit "access" with re-
spect to prospective Comedy Store presentations. There-
after, she determined, within her sole discretion, whether
comedian "applicants" would be granted Westwood per-
formance time, or preferred Sunset Boulevard spots; fur-
ther, she designated the particular Sunset Boulevard
room wherein their performances would be scheduled.
Shore could, and did, determine whether-within the
limits defined by their weekly "availability" declara-
tions-comedians would be granted performance time on
well-attended, presumptively desirable, weekday or
weekend nights, or normally less desirable, poorly at-
tended nights; and whether they would be scheduled for
prime time spots, or some less desirable performance
time, within a particular night's program lineup. When
selecting performers for prospective showcase presenta-
tions, Respondent's proprietor normally designated those
comedians whom she, subjectively, considered "ready"
for such presentation; further, she determined the sched-
uled "lineup" sequence pursuant to which their succes-
sive showcase performances would be mounted. (The
record suggests, in this connection, that Shore's planned
showcase schedules-which concededly reflected her
personal judgments, with respect to which particular
"acts" should precede, or follow, others-could, poten-
tially at least, stimulate favorable reactions, from possible
talent purchasers, with respect to performances by come-
dians slotted in comparatively desirable time spots. Con-
versely, showcase performers, whom Shore might con-
sider less worthy, could conceivably find themselves
critically received, presumably because of their particular
"lineup" placements, directly preceding or following
some favored, highly regarded performer's presentation.
Whether Respondent's proprietor deliberately granted
showcase performers, whom she considered particularly
well qualified, time spots wherein they could "shine" by
comparison with their fellow comedians, or, conversely,
scheduled less highly regarded performers for time spots
wherein their presentations might conceivably be judged
harshly, cannot be determined; the record, however, sug-
gests a possibly prevalent belief, within the Los Angeles
comedy community, that she could do so, and that she
may have, sometimes, purposefully followed such a
course.)
Shore, through her conceded controls-with reference
to determining whether comedians would be granted
"regular" status, with reference to whether particular
"regulars" would be granted performance time within
Comedy Store facilities, with reference to particular lo-
cations wherein performances by comedians would be
scheduled, and with reference to weekly "lineup" place-
ments-clearly manifested, and gave effect to, her per-
sonal, subjective judgment, regarding whatever laughter-
provoking potential their performances might reveal.
Respondent's proprietor, likewise, considered herself-
so the record clearly shows-vested with the power and
concomitant right to evaluate their personal "growth"
and "development" as comic entertainers; to monitor
their professional progress, within the so-called Comedy
Store system previously noted herein; and to provide
them-when she considered them qualified-with pro-
gressively prominent, more favorable, performance oppor-
tunities, whereby their skills as comedy entertainers
might be most effectively displayed.
When she did so, Respondent's proprietor-so I find-
realistically rewarded the Comedy Store's designated reg-
ular performers with coin which, though it might not be
tangible, they clearly valued. More particularly, she
vouchsafed her personal recognition with regard to their
presumptively growing competence as comic entertain-
ers; concomitantly, she scheduled performance time spots
calculated to provide them, consequently, with progessi-
vely greater opportunities for personal self-expression and
self-fulfillment. Likewise, she provided them with pre-
ferred "exposure" placements whereby they might, con-
ceivably, gain favorable public recognition; and thereby,
finally, she facilitated their pursuit of career goals as
public entertainers, whether within the Comedy Store
particularly, through performances of different nightclub
proprietors or variety show producers, through appear-
ances in motion pictures, television, and radio produc-
tions, or-sometimes-through participation in conven-
tional dramatic presentations.
Through her recognized power to grant, or withhold,
such rewards, clearly, Respondent's proprietor could
conceivably "control" performances within her Los An-
geles facilities. The record, herein, warrants a determina-
tion-within my view-that she effectively claimed such
a right of control.
Respondent contends that Shore's power to designate
comedians qualified for "regular" status, following their
successful Monday night auditions, coupled with her
conceded power to withhold or withdraw their sched-
uled Comedy Store performance time spots, should she
subsequently come to consider their stage presentations
less then satisfactory, reflects her retained right-
merely-to form judgments regarding their general quali-
fications as performers, and their capacity to produce de-
1445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sired results, within the Comedy Store's particular field.
Cf. Century Broadcasting Corp., 198 NLRB 923, 924. Fur-
ther, Respondent's counsel suggests, within his brief, that
Shore's practices-with respect to weekly performance
schedule preparation; her publicized requirements with
respect to timely notices of cancellation; her related re-
quirements with respect to timely reporting, nightly, by
scheduled comedians; her retained "right of approval"
with respect to possibly required substitutions or sched-
ule changes; and her conceded right to dictate the length
of scheduled performances and cut them short whenever
nightly exigencies might so require-were, likewise, pur-
sued, laid down, or exercised, solely to promote those
recreational or diversionary "ends" which Comedy Store
performers presumably serve, rather than to force com-
pliance with her views regarding the particular "means"
whereby such hopefully sought "ends" might be realized.
See Associated Musicians of Greater Newark (Bow and
Arrow Manor. Inc.), 206 NLRB 581, 589 (1973), enfd. 512
F.2d 991 (D.C. Cir. 1975); cf. Strand Art Theatre, Inc.,
184 NLRB 667, 668 (1970), in this connection. However,
Respondent's suggestion-that Shore's customary prac-
tices, routine usage, or standard procedures, whereby the
Comedy Store's day-by-day operations within the public
entertainment field have consistently been maintained, re-
flect a cognizable "right of control" strictly concerned
with the promotion and realization of desired results,
merely-carries no persuasion.
Previously, within this Decision, references have been
made to Shore's sometime manifestations of concern, re-
vealed in diverse ways, regarding the specific "details
and means" whereby Respondent's patent business objec-
tive-the provision of superior quality comedy entertain-
ment for paying patrons-might be most effectively real-
ized. Those manifestations of concern need not be herein
recapitulated. They persuasively reflect her claimed
"right of control" regarding various performance details,
whereby the capacity of particular comedy performers-
scheduled regularly within Respondent's Los Angeles
facilities-to present effective, entertaining, comic mono-
logues might be, within her view, enhanced.
Respondent's counsel contends, with his brief, that
whatever seeming "instructions" particular comedians
may have received from Shore, regarding their perfor-
mance's specific content, or style of presentation, should
be-for present purposes-deemed "suggestions" merely,
which the comedians concerned could freely disregard.
The record, within my view, will support a determina-
tion, however, that, precisely because she controlled
their professional "access" with respect to Respondent's
several stages, comedians desirous of Comedy Store per-
formance time spots generally considered Shore's pur-
ported suggestions, or critical comments, significant
functional directives with respect to which compliance
would-under most circumstances-be deemed required.
In this connection, General Counsel's witness, Mark
Lonow, testified that:
The difference between an order and a sugges-
tion when someone has enormous power over your
career is a very very thin line. . . [A] direction and
a suggestion from Mitzi Shore is one and the same
thing, in my opinion ....
When you are beginning a career in which every
fiber of your ego, your self esteem, your entire fan-
tasy life of who you are and who you are going to
become is involved and there seems to be one
path-one way-to make it in your mind, and that
is through The Comedy Store, the person who
owns The Comedy Store becomes an all-encom-
passing dictator. Whether in fact that is true or not
is almost irrelevant to a person trying to become a
regular at The Comedy Store to fulfill their fantasy
of being a great star. What Mitzi Shore says is the
law. It isn't that she requests or indicates. The mere
fact that the thought passes through her mind, in
ninety-nine percent of the cases, becomes the law in
your life. It is very hard to explain what an enter-
tainer goes through; what an artist whose emotional
life is totally involved with the need for success,
what goes through their being when someone who
they believe controls their destiny says something
to them. It is very hard to explain that to someone
who perhaps [conceives] of himself as an independ-
ent thinker. I am not saying this is right or wrong. I
am just saying it is a fact ....
Mitzi Shore's Comedy Store is for many. . . for
quite a long time it was probably the only game in
town .... The A.F.C. changed that by allowing
their members to perceive that they were not con-
trolled totally by The Comedy Store; that they did
have some dignity; that they could request some
money .... (It] is tradition in the industry-or
was tradition until my partner changed that tradi-
tion seventeen years ago-to break in new material
in little clubs around the country while you got
paid for it; while you earned a living at your profes-
sion and Bud [Friedman] started not to pay people
and that was a new concept. Mitzi turned that ham-
burger into McDonald's and these people believed
that their lives were dependent on a woman-or an
institution-that didn't pay them ....
The control, whether perceived or not, was in
Mitzi Shore's hands. Whether that control was used
correctly or whether they perceived it to be used
correctly is almost irrelevant. They perceived Mitzi
to have the control and she had the ABC contract,
which means if you wanted to be seen by ABC or
hired by ABC, whether it was true or not, they be-
lieved you had to go through the Comedy Store to
get hired there. It doesn't matter whether it is true
or not. These people believed that to be true and
that, in their lives, makes it true. It was the only
game in town ....
These witness-chair comments, though clearly calculated
to suggest their proponent's formulated "opinion"
merely, reflect a knowledgeable, articulate, professional
observer's viewpoint-one which many stand-up practi-
tioners within the Los Angeles comedy community, sev-
eral of them witnesses herein, patently share. Within my
view, likewise, Lonow's proffered assessment, regarding
these shared perceptions within Respondent's local corps
1446
THE COMEDY STORE
of designated regular comedy performers, with respect
to Shore's manifest power, may-properly-be deemed
persuasively descriptive. Compare N.L.R.B. v. Maine
Caterers, Inc., 654 F.2d 131, 134 (Ist Cir. 1981), particu-
larly the record quotation therein. Suggestions-when
proffered within a situational context reasonably calculat-
ed to persuade their recipients, subjectively, that failures
of compliance would, or could, provoke a confronta-
tion-clearly carry the force of commands.
Respondent's counsel, within his brief, provocatively
denigrates General Counsel's purported theory-which
he characterizes as novel-that Respondent's proprietor
possesses, and frequently exercises "irresistible psycho-
logical control, not unlike voodoo" when putatively con-
cerned with the content or presentation of comedy rou-
tines, performance records, and further career hopes held
by Comedy Store entertainers. Counsel suggests, rather,
that some "self-conjured fantasy" presumably shared by
such comedians, with respect to what regularly sched-
uled Comedy Store performances might mean, for their
careers, may have generated some "totally subjective il-
lusion" which they purportedly hold, particularly with
regard to Shore's proprietary power. Responsibility for
that illusion's generation-so Respondent's argument
runs-cannot properly be charged to Comedy Store
management representatives; counsel suggests that what-
ever conceptions Respondent's designated regulars may
have regarding Shore's putative "whammy" derives, not
from statements or conduct clearly chargeable to her,
but-rather-from gossip and hearsay, circulated within
their comedy community, solely.
Respondent's riposte, however, misconceives the basic
thrust of General Counsel's contention. No suggestions
have been proffered, for the present record, that Shore
currently claims or exercises some broadly gauged right
of control-regarding the particular manner in which
comedy "acts" scheduled for Respondent's nightly pro-
grams have been, or will be, presented-bottomed upon
necromancy, derived from putatively supernatural
sources, or directly emanating from some purely psycho-
logical dominance.
Shore's proprietary or managerial right of control, I
find, derives, rather, from readily cognizable, clearly
mundane circumstances.
Her Los Angeles club facilities, located in Westwood
Village and Hollywood, clearly provide the greatest
number of performance "opportunities" within the met-
ropolitan community, for hopeful, aspiring stand-up
comedy practitioners. Further, because of their record as
facilities wherein a significant number of prominent, pub-
licly recognized headliner and star comedy performers
have launched careers, or developed favorable reputa-
tions, they provide the most prestigious local stages
whereon hopeful, aspiring comedians-conjointly with
established practitioners-may present their comic rou-
tines, while entertaining presumptively appreciative lis-
teners.
Mindful of Respondent's consequently dominant posi-
tion, as the best known provider of comedy entertain-
ment within the local "marketplace" for their particular
talents, both newcomers and practiced comedians have-
quite understandably-consistently sought Shore's per-
sonal sanction for Comedy Store appearances. And, since
that sanction-when given-has, normally, been bot-
tomed primarily upon Shore's concededly discretionary,
subjective judgments with regard to their demonstrable
comic skills, comedians desirous of Comedy Store per-
formance time have-so the record shows-normally
considered their compliance, with her suggested or pro-
claimed standards, not merely advisable, but-indeed-
realistically required.
In short, whenever Respondent's proprietor has-here-
tofore-manifested concern regarding the subject matter
of some particular comedian's routine, his stand-up
monologue's substantive content, his general comic style,
or his performance techniques, her critical comments and
suggestions have-clearly-been taken seriously by their
recipients. And, since she could, conceivably, manipulate
or possibly deny scheduled performance spots within her
sole discretion, for comedians who might disregard such
comments, proffered advice or suggestions, her declared
wishes with regard to their "manners and methods" of
performance have-so the record shows-normally been
considered commands. (Upon this record, certainly, no
determination would be warranted that Shore has rou-
tinely supervised Comedy Store performers closely, or
that she has regularly directed them, regarding the de-
tails of their particular monologue's presentation. The
fact, however, that Respondent's proprietor may have
exercised little control, or less-than-frequent control,
over a comedian's presentations, will not foreclose a de-
termination that she possessed the right to do so. It is
"the right to control, not control or supervision itself,
which is most important." Grace v. Magruder, 148 F.2d
679, 681 (D.C. Cir. 1945). And, where the nature of a
person's work requires little supervision, there is no need
for pervasive control. Mitchell Bros. Truck Lines, 249
NLRB 476, 481 (1980), quoting Air Terminal Cab, Inc. v.
U.S., 478 F.2d 575, 580 (8th Cir. 1973). Credible testimo-
ny has been proffered, herein, which establishes-pre-
ponderantly, within my view-that, whenever Respond-
ent's proprietor, within her discretion, has considered
such direction warranted, with respect to matters of
detail, she has "exercised" her proprietary or managerial
prerogative. And, when she has done so-while coupling
her purportedly critical comments or substantive sugges-
tions, sometimes, with a clearly implied hint or specific
declaration that failures of compliance might persuade
her to circumscribe or withdraw a particular comedian's
Comedy Store performance privileges-she has, essen-
tially, been claiming a broadly gauged right of control
with respect to such detailed matters. Further, when par-
ticular comedians-recipients of her comments, advice,
or suggestions-have, subsequently, revised their routines
or performance techniques, they have realistically ac-
knowledged, thereby, her claimed right of control with
respect thereto.)
In language consistent with the Restatement of
Agency definition, previously noted, the ongoing rela-
tionship between Respondent's proprietor and Respond-
ent's recognized regular performers, described and de-
fined within the present record, reflects-so I find-their
shared understanding and consequent tacit "agreement"
1447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Shore, realistically, possesses a right of control
which she "may exercise" with regard to "details"
which, within her view, have affected, or might affect,
their comedy performances.
(2) Comedians as self-employed professionals
pursuing a distinct vocation
The conclusion hereinabove noted-that Shore, by
virtue of her status as Respondent's proprietor and sole
manager, possesses a significant right of control, which
she has, upon occasion, heretofore "exercised" with
regard to Comedy Store comedians, concerning their
manners and methods of performance-cannot, however,
be deemed completely dispositive, particularly with due
regard for the record herein. Since "all incidents of the
[work] relationship" with which we are concerned must
be weighed, with "no one factor" found therein consid-
ered decisive, some contextual analysis of the actual
working relationship revealed must-necessarily-be un-
dertaken. Only such analysis can provide the requisite
bases for a determination, with respect to whether Re-
spondent's claimed and consensually acknowledged right
of control, within its particular setting, has been sufficient-
ly manifested to warrant a finding of statutory "employ-
ee" status. In short, the dispositive importance properly
attachable to the degree of detailed supervision actually
exercised will, largely, be dependent upon the relevant
context which other varied concomitants of the ques-
tioned relationship may provide. See N.L.R.B. v. United
Insurance Company, supra, 390 U.S. at 259; N.L.R.B. v.
Phoenix Mutual Life Insurance Company, supra, 167 F.2d
983, at 986-987 in this connection.
There can be little doubt, upon this record, that public
entertainers who consider themselves stand-up come-
dians-within the Los Angeles metropolitan area particu-
larly-pursue a distinct vocation, with significant "entre-
preneurial" characteristics.
Some have, presumably, gained notable reputations
which enable them, consistently, to solicit and procure
compensable engagements, within the public entertain-
ment field, confined-exclusively-to recognized "stand-
up" comedy performances. Others, particularly those less
well known, have found themselves-so the record
shows-sometimes constrained to seek varied, but com-
parable, work within the field, while performing publicly
with so-called improvisational groups, or functioning as
conventional motion picture, stage, television, or radio
actors, cast in scripted dramatic or comedy roles. (Still
others-presumably newcomers, desirous of public ca-
reers as comedians, whose particular talents may not
have been fully developed or generally recognized-
have frequently been compelled to derive livelihoods,
primarily, from nonrelated work, generally outside the
public entertainment field, while consistently seeking
greater opportunities to practice and perfect their skills as
comic performers.)
These members of the so-called comedy community,
however, concededly seek long run, or successive short
run, "engagements" within their chosen vocational
field-calculated, particularly, to display their comic
skills-which are normally provided by a diverse group
of business enterprises, or through producers, impresa-
rios, and/or managers, concerned with the promotion
and presentation of public entertainments. See Restate-
ment of Agency, Section 220, subsection (2)b), in this
connection. When filling such professional engagements,
procured within the relevant metropolitan "market" for
their public services, comedians may properly be deemed
engaged in their "distinct" occupation, previously noted
herein.
While their recurrent Sunset Boulevard and Westwood
performances, therefore, constituted, and still constitute,
a concededly "integral" or "essential" part of Respond-
ent's principal business, Shore's designated regular per-
formers can hardly be considered, themselves, recipro-
cally dependent, financially or professionally, upon
scheduled Comedy Store appearances, solely, while prac-
ticing their chosen profession. (Clearly, none of Re-
spondent's putatively regular performers devote "virtual-
ly all of their working time" nor even some major por-
tion thereof, on a continuous basis, to Comedy Store per-
formances. Compare Standard Oil Company, 230 NLRB
967, 968-969 (1977). As previously noted, comedian
Dailey Pike testimonially claims-without challenge or
contradiction-that, currently, while providing services
subject to Respondent's defined compensation arrange-
ments, he normally derives "income" which approxi-
mates merely S250 monthly; such testimony persuasively
suggests that his scheduled Comedy Store performance
spots may average no more, at the most, than 10 per
month. The record, considered in totality, provides no
reason for doubt, regarding a determination-which I
make-that Pike's reported experience may, legitimately,
be deemed typical. Clearly Respondent's putatively regu-
lar performers-despite their presumptively recurrent
Comedy Store appearances-remain temporarily free to
seek comparable engagements, or work in related enter-
tainment field, elsewhere.)
In short, scheduled regular performers-while solicit-
ing performance time and providing services within
Shore's so-called Comedy Store system-may constitute
a clearly integral part of Respondent's normal business;
namely, the presentation of comedy entertainment pro-
grams. They may, further, seek, and hope to win, public
recognition-motivated by the keenest of desires-par-
ticularly through their participation in Comedy Store
programs. Clearly, however, their performance opportu-
nities, within Respondent's Los Angeles facilities, have
been, and remain, necessarily limited. Before their con-
certed withdrawal of services-when they performed
without monetary compensation-these performers may
well have considered their limited Comedy Store per-
formance spots constructive stepping stones, calculated
to promote their ultimate realization of career goals; they
could hardly, however, have considered such perfor-
mances proximately or directly supportive, with respect
to their daily livelihood. And-though comedians, within
the Comedy Store system, now receive some compensa-
tion-their current situation, with respect to gaining a
livelihood from compensable performances within Re-
spondent's facilities, clearly cannot reasonably be consid-
ered significantly improved.
1448
THE COMEDY STORE
The record herein further clearly warrants a determi-
nation that stand-up comedians, particularly, normally
supply the requisite "instrumentalities" and tools-how-
ever intangible those may be-whereby they provide
services as comedy performers. See Restatement of
Agency, Section 220(2Xe), plus comment (k) thereon, in
this connection. More particularly, they personally
create, revise, and develop the comic monologues or
routines which they present, whereby their comic skills
may be displayed; they provide their own costumes and
props when required; they practice and perfect their pre-
sumptively distinctive performance styles. Within their
vocational field, comedians are generally considered
vested with "proprietary" interest, so far as their particu-
lar acts are concerned. They may present their acts-
normally without restriction-both within Respondent's
Comedy Store facilities and likewise within facilities
maintained by other public entertainment providers. The
particular places where they perform and certain inci-
dental facilities may be provided by those engaging their
services; e.g., Respondent may provide stages, lights,
sound systems, and background music when required, to
facilitate their performances. Nevertheless, the fact that
comedians, while performing, may utilize such Comedy
Store facilities warrants no determination-despite Gen-
eral Counsel's contrary suggestion-that Respondent's
management, thereby, regulates or controls their presenta-
tions; the physical facilities and services noted merely
provide certain requisite installations or arrangements
calculated to promote effective comedy performances.
With matters in this posture, some determination that
stand-up comedians-particularly those considered regu-
lar performers within Respondent's so-called Comedy
Store system-practice a vocation with substantial entre-
preneurial characteristics, can hardly be gainsaid. Many
may consider their Comedy Store connection, per se,
vital. Clearly, however, they value Shore's readiness to
grant them "regular" status, primarily, because their re-
current spot performances, within Respondent's Los An-
geles facilities, will-so they hope-establish or promote
their professional reputations, further their careers, and
facilitate their concurrent or subsequent procurement of
comparable engagements, elsewhere, whether within the
comedy entertainment field, or some related field of en-
deavor. (As previously noted, most comedians have nor-
mally held themselves out, within the public entertain-
ment field, as professionals desirous of short-term or long
run engagements with diverse producers or providers.
Many have-so the record persuasively shows-fulfilled
commitments to perform, pursuant to verbal or written
contractual arrangements with producers or providers of
public entertainment other than Shore, while concurrent-
ly pursuing their weekly solicitations with respect to
scheduled Comedy Store performance time. Their partic-
ular vocation, thus pursued, may not require commit-
ments, on their part, involving significant capital invest-
ments, carrying some consequent risk of financial loss.
There can be no doubt, however, that-for many come-
dians-searches for professional work, outside the
Comedy Store system, reflect their solicitation of compa-
rable "freelance" engagements calculated to produce a
livelihood. To the extent that their searches for such
work may, however, require them to incur particular ex-
penses, their procurement of compensable engagements
may-arguably-be deemed calculated to produce "prof-
its" beyond their costs.)
In this connection-so the record shows-many come-
dians choose professional stage names, and publicize
their talents in trade publications; some retain business
managers and professional agents, to help them handle
their business affairs and procure compensable engage-
ments. Concurrently, they may maintain or publicize
"business" telephone connections, or subscribe to tele-
phone answering services, calculated to facilitate their
receipt of communications related directly to their pro-
fessional careers. And, when preparing their tax returns,
some comedians-so the record shows-do, indeed, treat
whatever costs they may have incurred, for the purposes
noted, as business, rather than as personal, expenses.
Clearly, with respect to these matters, comedians--
particularly when concerned with the public pursuit of
their proclaimed vocation, apart from their recurrent,
part-time, Comedy Store connection-maintain courses
of conduct normally considered characteristic of pre-
sumptively "independent" business activity, rather than
some condition of work-related subjections or dependen-
cy, reflective of statutorily defined employee status.
2. Conclusions
"Look to the essence of a thing, whether it be a
point of doctrine, of practice, or of interpretation."
[Marcus Aurelius, "Meditations," Chapter VIII, No.
22.]
As previously noted, statutory employer-employee re-
lationships-though necessarily contrasted with the
varied business relationships which independent contrac-
tors putatively maintain-cannot be readily or precisely
defined. Many factors-some of them discussed in detail
herein-must be considered, whenever determinations
are required with regard to the designated relationship's
existence. With this done, triers of fact will, finally, find
themselves required to determine-basically-whether or
not some collection of presumptively favorable factors
has been marshaled, sufficient to sustain a conclusion re-
garding the questioned relationship's presence.
The record herein, within my view, preponderantly
dictates determination that Respondent's concededly
fluctuating corps of designated regular performers should
be considered independent contractors, rather than statu-
torily protected employees, for present purposes. On bal-
ance, I find, those course of conduct factors-previously
noted herein-which persuasively suggest that the come-
dian's group with which we are concerned should, prop-
erly, be characterized as self-employed professionals
outweigh those which might, arguably, warrant their
designation as persons qualified for National Labor Rela-
tions Act protection.
Previously, within this Decision, certain determina-
tions have been made that-when comedians within the
Los Angeles metropolitan area particularly, solicit "regu-
lar" status within the Comedy Store system and subse-
quently obtain some scheduled performance "spot" time
within Respondent's facilities-they subject themselves,
1449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
realistically, to Shore's tacitly, but effectively, claimed
right of control, concerning the details of their perform-
ance. When considered, however, within its total factual
context-including the fact that particular comedians
normally provide services, within the Comedy Store
system, limited to part-time, though presumptively recur-
rent, performance spots while concurrently seeking com-
parable work and practicing their hopefully pursued vo-
cation with other public entertainment providers-the
broadly gauged "right of control" which Respondent's
proprietor realistically claims, by virtue of various cir-
cumstances noted previously herein, and sometimes clear-
ly exercises, lacks determinative significance.
Within a recent recommended decision, with respect
to which no exceptions have been filed, my colleague,
Administrative Law Judge Richard Taplitz, has evaluat-
ed the sometimes dispositive, and sometimes nondisposi-
tive, significance of the common law "right of control"
test in terms which may, reasonably, be considered per-
suasively relevant herein. American Federation of Musi-
cians, Local No. 76, AFL-CIO (National Association of
Orchestra Leaders), Cases 19-CC-1351 and 19-CC-1355,
October 30, 1981. Therein, Judge Taplitz noted that:
In a sense, a [businessman] who calls in an inde-
pendent contractor to do a particular job has the
right to tell the independent contractor in intimate
detail how he wants the job to be performed. The
independent contractor need not accept the job if
he is concerned with having someone watching
over his shoulder. If the independent contractor
clearly has a business of his own and is only going
on a [businessman's] jobsite to perform a particular
task, the fact that the independent contractor agrees
to do the job exactly as the [businessman] desires
both with regard to means and ends does not de-
prive him of his status as an independent contractor.
Taken at a somewhat simplified level, a homeowner
who knows a lot about plumbing may call in an in-
dependent contractor plumber to fix a leak. The
homeowner may tell the plumber that he can have
the job only if he uses a certain type of pipe and
weld. The homeowner may describe exactly the
means by which he wants the job to be done. If the
plumber agrees to those terms and performs the
work exactly as he is told, he is not necessarily an
employee of the homeowner for that hour when he
is doing the work. In other words the entrepreneur-
ial aspects of an independent contractor's business
can be so clear that the "right to control" test be-
comes less important.
The relationship generated and maintained between Re-
spondent's proprietor and her designated regular per-
formers-based upon customary Comedy Store practices
and Shore's standard procedures-differs, somewhat,
from that described in the above commentary. Within
the present record, we find a relationship depicted
wherein certain vocationally specialized "entertainers"
have been granted Comedy Store performance time, spe-
cifically because Respondent's proprietor considers them suf-
ficiently skilled, within their chosen field, to provide satisfac-
tory services which contribute directly to Respondent's regu-
lar business. Analytically, the fact Shore may effectively
possess a consensually recognized right to control the
manner and means by which performers designated and
scheduled by her provided services, directly related to
Respondent's principal business, might well provide
some support for a determination that such designees
should be considered employees. The record, however,
reveals further that Respondent's scheduled performers
normally provide recurrent part-time or casual, intermit-
tent services, merely, while concurrently pursuing ca-
reers-separately from their Comedy Store connection-
within the public entertainment field generally. Under
these circumstances, the fact that Shore may, sometimes,
have "intervened to some degree" regarding various de-
tails connected with their Comedy Store performances,
particularly, must be considered, within my view, lack-
ing in significance sufficient to "color the whole rela-
tion" with which we are herein concerned. See Radio
City Music Hall Corporation v. United States, 135 F.2d
715, 717-718 (2d Cir. 1943, Learned Hand, C. J.), quoted
in Strand Art Theatre, Inc., 184 NLRB 667, 1668-69;
compare American Guild of Musical Artists, AFL-CIO,
157 NLRB 735, 736, fn. 1, 740-742, in this connection.
In their professional dealings with Respondent's pro-
prietor-before their concerted withdrawal of services,
before their self-organization for mutual aid and protec-
tion, and before any collectively negotiated "agreement
of settlement" calculated to regularize their relationship
had been signed-these Los Angeles metropolitan area
comedians may, arguably, have been constrained to pro-
vide their professional services, without compensation,
for Respondent's financial benefit. Upon this record,
however, no determination would be warranted, pursu-
ant to the National Labor Relations Act, as amended,
that their services were provided as statutorily protected
"employees" consciously and deliberately "hired" for the
purpose. If, therefore, Respondent's repudiation of their
negotiated settlement, coupled with Shore's proclaimed
refusal to comply with that settlement's specific terms or
to consider consequential grievances bottomed thereon,
constitutes a wrong for which some appropriate remedy
may be sought-but which this Board, functioning
within its proper jurisdictional sphere, cannot provide-
that remedy must, obviously, be pursued by some other
means, or within some other forum.
1450
THE COMEDY STORE
Upon the foregoing findings of fact, conclusions of
law, and the entire record,' and pursuant to Section
10(c) of the Act, as amended, I hereby issue the follow-
ing recommended:
The record transcript herein reveals a number of transcription errors.
No requests for their corrections have, however, been presented. Since
most of them may readily be recognized and properly evaluated, within
their particular context, no corrections have currently been ordered.
ORDER2
The complaint is dismissed in its entirety.
2 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 find-
ings, 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.
1451