Diva, Inc.

National Labor Relations Board - Board Decisions

May 22, 1998

325 N.L.R.B. 822 (N.L.R.B. 1998)

822
325 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 Because we agree that the Respondent did not discharge Fried-
man, we find it unnecessary to pass on the Respondent’s alternative
argument that Friedman was an independent contractor rather than
an employee. And, because we do not pass on that issue of status,
we do not pass on whether Friedman’s activity was within the ambit
of Sec. 7 conduct.
Diva, Ltd. and Janice Friedman. Case 2–CA–28189
May 22, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On April 29, 1997, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions, a sup-
porting brief, and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that Charging Party Janice Fried-
man was an employee of the Respondent and that the
Respondent violated Section 8(a)(1) by terminating
Friedman in January 1995 because she had engaged in
protected concerted activities. The Respondent excepts.
It argues that Friedman is an independent contractor
and not an employee within the meaning of Section
2(3) of the Act. Alternatively, the Respondent contends
that, even if Friedman were an employee, she left vol-
untarily and was not discharged. For the following rea-
sons, we find merit in the Respondent’s contention that
Friedman voluntarily severed her relationship with the
Respondent. Accordingly, we shall dismiss the com-
plaint.2
The relevant facts are fully set forth in the judge’s
decision. Briefly, the Respondent operates and man-
ages an all-women jazz band, ‘‘Diva.’’ Beginning in
the fall of 1993, Friedman, a jazz pianist, performed
in all of Diva’s gigs. In mid-1994, during a Florida
band tour, Friedman spearheaded meetings where she
and other Diva musicians complained about various
working conditions. The Respondent knew of these
meetings and of Friedman’s participation in them. The
Respondent’s founder and artistic director, Stanley
Kay, testified that he considered firing Friedman in
Florida because she was ‘‘causing dissension in the
band.’’ Notwithstanding this, however, the Respondent
continued using Friedman as Diva’s pianist in all sub-
sequent gigs.
In late December 1994, the Respondent invited
Friedman to perform in a California band tour. The
Respondent considered the California tour extremely
important because Diva’s scheduled performance at a
jazz educators’ convention would heighten the band’s
visibility.
In preparation for the California tour, the Respond-
ent offered Friedman and other invited musicians a
written ‘‘contract.’’ This contract was the first written
agreement the Respondent had used with the musi-
cians. The contract specified, among other things, the
schedule of the California performances and rehearsals,
lodging and transportation arrangements, and band re-
muneration. The contract also specified that the band
would depart for California on January 9, 1995, and
that interested musicians had to sign and return the
contract to the Respondent by January 4, 1995, if they
wished to participate in the tour.
After receiving the contract, Friedman informed two
Diva musicians that she was dissatisfied with some of
its terms, as well as other working conditions. Fried-
man told these musicians that she planned to write the
Respondent about her concerns. On January 4, Fried-
man faxed a letter to Stanley Kay, listing several areas
of dissatisfaction and demanding specific changes.
Some of Friedman’s demands addressed her individual
concerns, such as that her piano be adequately ampli-
fied, that she be provided extended solos, and that she
be guaranteed ‘‘first calls’’ for all 1995 gigs. Other de-
mands in the January 4 letter affected Diva musicians
generally, such as rehearsal and break schedules, com-
pensation, band meetings, and lodging on the Califor-
nia tour. Regardless of whether the enumerated de-
mands affected Friedman individually, or band mem-
bers generally, however, Friedman made clear in the
January 4 letter that she, alone, was making the de-
mands. Thus, after specifying her demands, Friedman
wrote Kay that this is ‘‘between you and me.’’
It was likewise clear that the January 4 letter con-
stituted an ultimatum from Friedman to Kay that un-
less her specified conditions were met Friedman would
sever her relationship with the band. Thus, Friedman
concluded the letter by informing Kay that:
I hope [this letter] will be accepted by you and
signed and returned to me sometime on Jan.
5th. . . . If you decide this is to [sic] much for
you, then I wish you great luck with the band,
and I will always know that I stood up for women
having a voice.
Upon receipt of the letter, Kay immediately con-
tacted Diva bandleader (and drummer) Sherry Maricle.
Kay expressed anger over Friedman’s letter and told
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823DIVA, LTD.
1 Respondent’s adjusted trial balance for 1994, received in evi-
dence on another issue, reflects gross revenues in excess of $100,000
and income from Tavern on the Green far in excess of the $5000
stipulated.
Maricle he felt he was being ‘‘blackmailed’’ into ac-
cepting Friedman’s terms because of the band’s immi-
nent departure for California. Maricle also expressed
anger over Friedman’s ultimatum. After Kay and
Maricle had decided that Friedman’s demands could
not be met, Kay contacted Lolly Bienenfeld, a Diva
musician who handled certain band administrative mat-
ters. Kay instructed Bienenfeld to notify Friedman that
the Respondent would not meet her conditions and that
it would find another pianist for the California tour.
Bienenfeld left this message with Friedman on January
5.
On January 6, Friedman telephoned Kay, asking
which of her demands he could not meet. According
to Friedman’s credited testimony, Kay responded that
he ‘‘didn’t understand any of it . . . [and] didn’t want
to talk about any of it.’’ When Friedman pushed Kay
about two specific demands—rehearsals and lodging—
Kay reiterated that ‘‘I don’t understand any of it and
I don’t want to talk about it. You’ve been a problem
since the beginning.’’ Kay also disputed Friedman’s
claims that band members were afraid to raise these
concerns to him, stating, ‘‘[Y]ou’re the only one that’s
scared. I have 12 loyal people.’’ Friedman concluded
the conversation stating, ‘‘Well, okay.’’ Thereafter,
Friedman never informed the Respondent, prior to or
after the California tour, that she had rescinded the de-
mands set out in her January 4 letter.
Contrary to the judge, we find that Friedman volun-
tarily ended her relationship with Diva by conditioning
her willingness to continue performing with the band
on the Respondent’s acquiescence to the ultimatums
set forth in her January 4 letter. In the letter, Friedman
clearly indicated that unless her conditions were met,
she intended to part ways with the band. The Respond-
ent—as it was lawfully privileged to do—responded to
the letter by informing Friedman that it could not meet
her demands and that a replacement would be found
for her for the California tour. We note that although
Friedman called Kay the following day and attempted
to question him as to which of her demands the Re-
spondent could not meet, she did not indicate in that
conversation that any of her demands had been with-
drawn. Neither did she at any subsequent time inform
the Respondent that she would be willing to resume
playing with the band without those demands being
met. Accordingly, we reverse the judge’s finding that
the Respondent terminated Friedman in violation of
Section 8(a)(1) of the Act. See Albertson’s Inc., 307
NLRB 787, 796–797 (1992) (employee voluntarily quit
when she was told by company management that her
demand for a wage increase would not be met).
ORDER
The complaint is dismissed.
Ian M. Penny, Esq., for the General Counsel.
William E. Zuckerman and Jamie Levitt, Esqs., for Respond-
ent
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in New York, New York, on February
6 and 7, 1997. The charge was filed February 13 and amend-
ed May 25, 1995, and the complaint was issued June 28,
1996.
The complaint alleges and Respondent denies that Charg-
ing Party Janice Friedman was terminated on or about Janu-
ary 5, 1995, because she engaged in concerted activities pro-
tected by Section 7 of the Act. As an affirmative defense,
Respondent asserts that Friedman was an independent con-
tractor and not an employee. Respondent further asserts that
the Charging Party voluntarily severed her association with
Respondent and was not terminated.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the Respondent and the General Counsel, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent Diva, Ltd. admitted in its answer that it is a
corporation engaged in the operation and management of a
jazz band. The parties stipulated that in 1994, during the pe-
riod relevant to the complaint, Respondent directly earned
$45,000 in interstate commerce and at least $5000 from per-
forming services for Tavern on the Green, an entity which
the parties stipulated meets a Board standard for assertion of
jurisdiction other than indirect inflow or indirect outflow.1
Respondent nevertheless denies that the Board has jurisdic-
tion over Respondent, arguing that it is not an ‘‘Employer’’
because of its position that band members are independent
contractors rather than employees. Respondent also asserted
as an affirmative defense that the Board should decline juris-
diction in this case because its activities have a de minimus
impact on interstate commerce.
The facts stipulated by the parties establish that Respond-
ent’s business operations ‘‘affect commerce’’ within the
meaning of Section 2(7) of the Act. Marty Levitt, 171 NLRB
739 (1968). Moreover, because of the nature of Respondent’s
business, selling its services to commercial enterprises such
as restaurants, casinos, and the New York Yankees, rather
than directly to the ultimate consumer, as in a ‘‘club date,’’
the Board’s nonretail standard for assertion of jurisdiction
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824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although the General Counsel’s witnesses, Friedman and Terry,
testified that band members would be penalized if they turned down
an engagement by not being called again, in actual practice, musi-
cians did occasionally decline engagements while continuing to play
with Respondent.
applies. Respondent’s operations meet that standard. It is
thus subject to the Board’s jurisdiction. Id.
Respondent’s argument premised on its assertion that band
members are independent contractors is without merit based
on my finding below that band members are employees of
Respondent. Accordingly, it is found that Respondent is an
Employer within the meaning of the Act, subject to the
Board’s jurisdiction.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Employee Status of Charging Party
Respondent was formed in 1992 by Stanley Kay, a veteran
jazz musician and manager, Sherry Maricle, a drummer, and
John LaBarbera, a musical arranger, to give women jazz mu-
sicians a forum to perform and to serve as a role model to
young women interested in performing jazz. Kay holds the
title of artistic director. He serves as the band’s manager and
is responsible for securing engagements, or ‘‘gigs,’’ where
the band can perform. He receives no compensation from
Respondent for his services. Maricle holds the title of
bandleader and serves as the conductor and musical director.
LaBarbera, whose involvement with the band has waned
since its founding, also held the title of musical director and
was responsible for selecting and arranging the music that
the band would perform. As his involvement has declined,
Maricle has assumed these latter responsibilities. Both
Maricle and LaBarbera were responsible for recruiting and
hiring the musicians who played with the band at its incep-
tion. More recently, Maricle has become solely responsible
for selecting musicians. In addition to these individuals, Re-
spondent employs a road manager, Shaun Whitaker, who is
responsible for arranging transportation of the band and its
equipment to gigs and setting up for the performances, and
a personnel manager, Lolly Bienenfeld, who performs cleri-
cal chores and communicates offers of employment and in-
formation regarding gigs to individual band members.
Bienenfeld is also a musician who has played with the band
since its inception. Respondent has admitted that Kay is an
agent of Respondent. The evidence establishes that Maricle
is also an agent of Respondent with respect to its dealings
with the musicians. There is no allegation that either
Whitaker or Bienenfeld are supervisors or agents of Re-
spondent.
The testimony of Maricle and Kay reveals that when an
engagement or ‘‘gig’’ is booked by Respondent Maricle de-
cides which musicians would be appropriate for that engage-
ment and will offer the gig to the musicians selected. If the
musician has a conflict, she may decline the offer without
foreclosing future opportunities to play with the band.2 The
Band consists of 15 musicians. Although not always the
same 15 musicians, it is undisputed that, over time, a core
group has become identified as ‘‘Diva.’’ Respondent’s gen-
eral ledger, showing payments to musicians during 1994,
shows that approximately 12–13 musicians were paid for
every performance in 1994. Maricle herself, who is respon-
sible for hiring the musicians for each engagement, testified
that it would not be beneficial to have 15 different members
each time the band performs, for obvious reasons. The vari-
ation that exists among band members from performance to
performance is based on factors such as availability of the
musicians and the type of engagement. Maricle testified that
she also liked to rotate new musicians through the band so
that they could learn the bands repertoire. This would in-
crease the pool of musicians who could readily substitute for
regular band members who were unavailable for a particular
gig.
Maricle and Kay determine how much to pay each musi-
cian for the gig, whether a rehearsal is necessary, and the
time, duration, and location of the rehearsal and the com-
pensation for the rehearsal. At the rehearsals, Maricle deter-
mines when to take a break and whether additional rehearsal
time is needed at the end of the scheduled time. Respondent
arranges transportation to the gig, including transportation of
the larger instruments. Respondent also pays transportation to
New York for musicians who live in other parts of the coun-
try, such as Audrey Morrison and Lee Kavanaugh.
Maricle and Kay determine what music to play at each en-
gagement. Maricle also determines who will play solos and
the length of the solo, although, due to the improvisational
nature of jazz, the individual musician devises her own solo
within the context of the piece being played. Respondent
hires and pays for musical arrangements and provides each
band member with a score book of such arrangements. Re-
spondent owns the score books and retains them in between
rehearsals and engagements. There is uncontradicted testi-
mony that Kay has told individual band members to ‘‘play
like Ray Brown [or] Duke Ellington [or] Count Basie.’’
When Respondent recorded a CD, in May 1994, Kay nego-
tiated with a record company. When these negotiations were
unsuccessful, he decided to produce the CD himself, select-
ing the recording studio and paying the costs of producing
the recording. He and Maricle determined what arrangements
to record and whether to do another take after each piece
was recorded. Kay and Maricle also determined the amount
of compensation each musician would receive for performing
at the recording session. There is no evidence that individual
band members were expected to share in any profits from the
sale of the CD.
The General Counsel offered into evidence, without objec-
tion, a series of memoranda written by Maricle and distrib-
uted to band members providing detailed itinerary and in-
structions as to upcoming engagements, including instruc-
tions regarding what musicians will wear at performances.
Some of these memos refer to ‘‘off days’’ between rehearsals
and performances. According to Maricle, these memos were
distributed to those musicians who had committed to play the
engagements listed. Some of the memos also provide infor-
mation regarding recording plans, tentative future engage-
ments, and usually end with a note of appreciation for the
musician’s efforts and an exhortation to stay with the band.
In addition to these written instructions, Kay also held band
meetings at which he reviewed the band’s performance and
gave instructions as to smiling, bowing, looking at the soloist
during performances and other details related to how the
band presented itself on stage. Respondent has provided arti-
cles of clothing to band members to wear at performances
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and utilizes music stands with the Diva logo that are trans-
ported to rehearsals and performances.
There is no dispute that Respondent does not have an ex-
clusive arrangement with band members. Musicians are free
to play with other groups and in fact do. This is primarily
due to the fact that Respondent is not yet successful enough
to enable an individual band member to support herself sole-
ly through its engagements. The individual band members
identify themselves as ‘‘self-employed’’ for tax purposes,
carry business cards, and many of them also teach private
students. Except for Friedman, the pianist, the band members
use their own instruments. The piano used by Friedman is
usually provided by the venue, i.e., the rehearsal hall, record-
ing studio or performance site, although Respondent did rent
a piano for Friedman during a concert tour to Florida.
There is no dispute that musicians are paid a flat fee per
rehearsal or engagement, without regard to the length of time
the musicians are required to perform and that the fee is uni-
laterally determined by Respondent based on how much Re-
spondent is paid for the engagement. No taxes are withheld
or benefits provided, although Respondent does pay for trav-
el expenses when the band is on the road, or when a musi-
cian is brought in from out of town to play with the band,
as in the case of Lee Kavanaugh. With one exception, Re-
spondent and individual musicians did not execute written
contracts or agreements setting forth the terms of their rela-
tionship, although Maricle’s memoranda did establish the
terms of engagements and apparently formed the basis of an
oral agreement for those musicians who accepted the engage-
ments identified in each memo. The one exception relates to
a trip to California in early January 1995 and will be dis-
cussed in more detail, infra, as it relates to the termination
of the Charging Party.
The testimony of Respondent’s witnesses Kay and Maricle
that there was no guarantee of future employment for indi-
vidual band members is inconsistent with testimony from
these and other witnesses that a band member could decline
an engagement without jeopardizing future employment.
Similarly, Kay’s testimony that no member of the band had
a right to be ‘‘first call’’ for a gig is contradicted by
Maricle’s testimony that in fact there were a group of musi-
cians she would call first and hope that they were available.
Although Respondent may have been a part-time band at its
inception, Respondent concedes in its posthearing brief that
the goal was to become successful enough to be a full-time
band with fixed members. Thus, it is clear that, from Re-
spondent’s perspective, there was an expectation of continued
employment for those band members who had demonstrated
the level of skill and talent desired by Maricle and Kay.
Respondent’s witnesses testified that while Maricle might
select the music to be played at an engagement and makes
other decisions regarding how the music is played, she and
Kay do so after input from band members. For example, the
record indicates that many members, including the Charging
Party, were unhappy with the band’s founding arranger, John
LaBarbera and expressed this unhappiness to Maricle. Be-
cause of their concerns, Respondent stopped using
LaBarbera. There is also evidence that, following a concert
tour to Florida and as a result of concerns expressed at a
meeting of band members to be discussed in more detail,
infra, weekly voluntary rehearsals were held in October and
December 1994 for which no fee was paid to the members.
This input from band members, in the nature of creative col-
laboration, does not establish independent contractor status
where Respondent makes the final decision regarding all as-
pects of its enterprise.
The question whether an individual is an employee entitled
to the protections of the Act or an independent contractor ex-
cluded from coverage is to be decided by assessing the total
factual context in light of the pertinent common-law agency
principles. NLRB v. United Insurance Co., 390 U.S. 254, 258
(1964). The right to control test, i.e., whether the one for
whom services are performed retains the right to control the
manner and means of achieving the result sought, or only re-
tains control as to the ultimate results, has often been cited
as foremost among these principles. Roadway Package Sys-
tem, 288 NLRB 196 (1988); News Syndicate Co., 164 NLRB
422, 423–424 (1967). However, there are other relevant fac-
tors under the common-law of agency that must also be con-
sidered as pertinent to the facts in a given case. The Board
has identified the following additional factors: whether the
one employed is engaged in a distinct occupation or busi-
ness; whether the employer or the one employed supplies the
instrumentalities, tools, and place of work for the job; the
length of time for which the individual is employed; the
method of payment (by the job or by time); whether the
work to be performed is part of the regular business of the
employer; whether the parties believe they are creating an
employer-employee relationship; and whether the employer is
or is not in business. Puerto Rico Hotel Assn., 259 NLRB
429 (1981), enf. denied sub nom. Hilton International Co. v.
NLRB, 690 F.2d 318 (2d Cir. 1982); Young & Rubicam
International, 226 NLRB 1271, 1272 (1976). The Board has
also considered the degree of entrepreneurial risk borne by
the putative employee/contractor as a relevant factor. DIC
Animation City, 295 NLRB 989, 991 (1989); and Mission
Foods Corp., 280 NLRB 251 (1986). The resolution of this
issue is a question of fact and no one factor is determinative.
News Syndicate Co., supra at 423–424.
The issue in this case is a close one as there are factors
tending to support either a finding that the Charging Party
was an employee or that she was an independent contractor.
For example, the lack of exclusivity in the arrangement be-
tween Respondent and individual band members; the method
of payment (a flat fee per engagement without regard to
time); the fact that all band members except the Charging
Party supply their own instruments and that band members
are selected based on their talent and experience would sug-
gest that they are independent contractors. DIC Animation
City, supra; Young & Rubicam International, supra, and
cases cited therein. The musicians’ freedom to decline an en-
gagement and the lack of any restriction on outside work
also support a finding of independent contractor. Boston
After Dark, 210 NLRB 38 (1974); Century Broadcasting,
198 NLRB 923 (1972). Similarly, the right to control test,
as applied to artists, permits some degree of control over
what at first glimpse might appear to be the means and man-
ner of achieving results by the party hiring the artist without
rendering the hired artist an employee. DIC Animation City,
supra; Young & Rubicam International, supra; Boston After
Dark, supra; Musicians Local 16 (Greater Newark), 206
NLRB 581 (1973), affd. 512 F.2d 991 (D.C. Cir. 1975).
On the other hand, Respondent’s control over where, when
and for how long the band members will rehearse and per-
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826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In Puerto Rico Hotel Assn., supra, the Board found that hotels
were the employers of club and lounge bands hired to perform in
the hotels. The Court of Appeals, in denying enforcement to the
Board’s Order, found that the band leaders were independent con-
tractors and that the musicians were employees of the band leaders,
not the hotels. Hilton International Co. v. NLRB, supra at 321–322.
The nature of the relationship between the band leaders and musi-
cians there bears many similarities to that between Respondent and
the musicians here.
form; the music to be played, the instruments to be used, and
who will solo and for how long; Kay’s instruction to individ-
ual band members to play in the style of certain well-known
jazz musicians; Respondent’s unilateral determination of the
fee each musician will receive; the continuity of employment
of most of the musicians in the band, and the fact they have
become identified with Respondent all suggest that they are
employees rather than independent contractors, at least dur-
ing those times when they are hired by Respondent. Musi-
cians (Royal Palm Theater), 275 NLRB 677, 681–682
(1985); Puerto Rico Hotel Assn., supra;3 Castaways Hotel,
250 NLRB 626, 642–644 (1980); Reno Musicians Protective
Union, Local 368, 170 NLRB 271 (1968).
The most significant factor that tips the balance in favor
of a finding that the Charging Party and other band members
are employees is the lack of entrepreneurial risk to band
members while working for Respondent. This is what distin-
guishes them from the animation writers, photographers and
other creative artists found by the Board to be independent
contractors in DIC Animation City, Young & Rubicam, and
other cases relied on by Respondent. Although the individual
members of the band may take entrepreneurial risks in their
individual music projects as solo performers, leaders of their
own combos or music instructors, clearly there are no risks
involved while employed by the band. They are paid the fee
unilaterally determined by Respondent for each rehearsal, en-
gagement or recording session, and are compensated for trav-
el and lodgings, even if Respondent loses money on a gig.
Diva bears the expenses of getting the band to its perform-
ances, pays for rehearsal space, and even rents instruments
for musicians when necessary. Moreover, when recording a
CD with the expectation that it would be marketed and sold
as any recording, the band members were paid ‘‘scale,’’ a
flat fee, and were not expected to share in any profits real-
ized from sales of the recording. While employed by Diva,
charging party and the other musicians bear few of the risks
and enjoy little of the opportunity for gain normally associ-
ated with an entrepreneurial enterprise. Roadway Package
System, supra; Castaways Hotel, supra at 644. In contrast, the
animation writers, photographers, and other creative artists
found by the Board to be independent contractors expend a
considerable amount of time and effort in submitting work
to the ‘‘employer’’ without any guarantee their work will be
accepted or that they will recoup all their expenses.
The Board’s decision in Boston After Dark, supra, also re-
lied on by Respondent, would at first glance appear to estab-
lish the nonemployee status of artists like Respondent’s mu-
sicians who retain the discretion to refrain from performing
work for an employer. In that case, the Board found free-
lance contributors to a weekly newspaper to be independent
contractors rather than employees even though some of the
contributors possessed many of the indicia of employee sta-
tus, e.g., their work was subject to editorial control by the
employer; they used the employer’s facilities to do their
work; regularly contributed work to the employer and de-
rived most if not all of their income from such work. A ma-
jority of the Board based its finding on the no-work/no-pay
arrangement, lack of fringe benefits, and the freedom of the
contributors to refrain from contributing material in any
given week without jeopardizing future work. While these
factors appear similar to the arrangement of the musicians
and Respondent here, there is one significant difference. The
contributors to the newspaper controlled their product, i.e.
they determined what to write, how much time to spend writ-
ing, where to write, etc. The musicians here perform with
Respondent at the times and places determined by Respond-
ent, the music they perform is determined by Respondent and
their individual creative expression is integrated into a group
product.
Respondent’s reliance on the outside activities of individ-
ual band members and the lack of regularity of employment
by Respondent is misplaced. In determining the status of an
individual as an employee or independent contractor, it is the
relationship between the individual and the putative employer
which is dispositive. The fact that an individual may work
for more than one employer, or may only work part-time
does not establish that they are independent contractors. Even
individuals who are clearly statutory employees may hold
two or more jobs or work on a casual, temporary, or part-
time basis without losing their employee status.
This case is more closely analogous to Musicians (Royal
Palm Theater), supra. The musicians hired by the theater in
that case to produce a recording for use in the theater’s pro-
ductions were utilized only for a few hours with no expecta-
tion of future employment. The Board adopted the adminis-
trative law judge’s finding that they were employees of the
theater even though the theater did not directly hire or pay
the musicians. The judge emphasized the degree of control
exercised by the theater’s music director over the details of
the recording, control similar to that exercised by Maricle
and Kay in the instant case. Respondent argues that this case
is of limited precedential value because the issue was wheth-
er the respondent union had violated Section 8(b)(1)(B) by
filing internal union charges against the theater’s director.
However, the finding that the musicians were employees and
that the director was acting as their supervisor at the record-
ing was an essential element leading to the finding of a vio-
lation. Thus, the judge’s finding as to employee status was
more than mere dicta.
Respondent’s argument that the issue of the employee sta-
tus of freelance musicians in a band context is one of first
impression is erroneous. In Musicians Local 16 (Greater
Newark), supra, a secondary boycott case, the Board adopted
the administrative law judge’s finding that musicians were
employee’s of band leaders who performed in a restaurant,
even though the musicians, referred to by the judge as
sidemen, had other employment. While there are factual dif-
ferences between that case and the instant one, the relation-
ship of musicians to orchestra leaders, in terms of the control
exercised by the leaders over the music to be performed by
the band, is similar and establishes the employee status of
the musicians here.
Accordingly, based on an evaluation of all the factors
present here, a preponderance of the evidence establishes that
the Charging Party and the other musicians who perform
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4 Of the musicians who were with Friedman, only Daley testified,
as a witness for Respondent. She was not asked about this incident.
Maricle did testify about her side of the telephone conversation and
corroborated Friedman regarding the concerns expressed by the mu-
sicians about LaBarbera’s role with the band. Maricle testified that
it was her idea to have a meeting in Florida, to discuss musical
issues. Friedman acknowledged that the meeting may have been
Maricle’s idea.
5 Kay admitted calling a meeting after the rehearsal because of
‘‘unrest’’ in the band, but he did not testify to any exchange with
Friedman regarding the scheduling of the meeting.
with Respondent are employees within the meaning of the
Act.
B. Termination of Janice Friedman
Friedman is a jazz pianist who first played with Respond-
ent at a gig in Atlantic City in July 1993. Friedman testified
without contradiction that Kay and Maricle told her at that
time that they liked her playing and would like her to join
the band but they already had a pianist. Several months later,
in October 1993, Friedman was asked to join the band and
there is no dispute that she played every one of Respondent’s
gigs from that point through the end of 1994.
The alleged concerted activity began after the recording
session in May 1994. Friedman testified that the session
lasted longer than scheduled and that she and several other
musicians went out for a drink afterward, ending up at the
home of band member Ingrid Jensen. Friedman and the four
other musicians who were with her (Jensen, Elaine Burt, Au-
drey Morrison, and Clare Daley) were upset about the way
the recording session had gone and, in particular, the role of
LaBarbera at the session. According to Friedman, the musi-
cians felt that LaBarbera had taken over the session and
treated Maricle disrespectfully. While at Jensen’s house, they
telephoned Lee Kavanaugh, another musician, and Maricle
and spoke to them over a speaker phone, airing their con-
cerns. According to Friedman, Maricle shared their concerns
regarding LaBarbera. Friedman testified that the musicians at
Jensen’s house and Maricle discussed having a band meeting
during their upcoming Florida tour.4
During the Florida tour, the band held a rehearsal, out-
doors on a pier under a pavilion, under less than ideal condi-
tions. At the end of the time scheduled for the rehearsal,
Maricle said she wanted to continue rehearsing, which did
not please some of the musicians. Mary Ann McSweeney,
the bass player who testified at the hearing, asked to be ex-
cused from further rehearsals because she wasn’t feeling
well. She was permitted to leave. At the conclusion of the
extended rehearsal, Kay told the band members he wanted to
have a meeting. This request engendered some complaints
from the musicians, including Friedman, who asked Kay if
the meeting was something that could be handled quickly so
that the musicians could have the rest of the afternoon to
themselves. According to Friedman, Kay became irate at her
suggestion, but in response to band members complaints, he
agreed to take a 45-minute break so they could get some-
thing to eat before meeting.5 According to Friedman, Kay’s
meeting lasted 1-3/4 hours, during which Kay asked each
member of the band why they wanted to be in Diva.
McSweeney corroborated Friedman. Kay, the only witness
for Respondent to testify about this meeting, said he held the
meeting to air things out, to ask the band members what it
meant to them to be in Diva, to find out if they had the same
goals. According to Kay, he also wanted to make sure the
members understood his role and background, that he under-
stood their concerns because he had been in a band himself
and to let them know that he was doing all he could to make
things better.
A day after Kay’s meeting, the band members held their
own meeting. This is the meeting which had been discussed
in Jensen’s house. According to Friedman, although the
meeting may have been Maricle’s idea, Maricle told Fried-
man before the band left New York that she would not at-
tend the meeting because she was part of management.
Maricle testified that she did not attend the meeting because
she had heard through the grapevine that the meeting was
going to be a negative, unproductive ‘‘bashing ’’ session
with members complaining about things she had no control
over. Several other band members did not attend the meeting.
In preparation for the meeting, Friedman had typed out an
agenda. This document is entitled ‘‘Organization of Diva
Union’’ with ‘‘Union’’ crossed out and ‘‘Musician Commit-
tee’’ handprinted in its place. According to Friedman, Au-
drey Morrison crossed out the word union because she felt
people would be threatened by that word. The agenda in-
cluded organizational items, such as voting for leaders and
‘‘reps to Stanley’’ and having the ‘‘treasurer . . . check
union scales’’; a ‘‘suggestion’’ that ‘‘once we have our
personell [sic] list we will not let someone be fired without
us knowing why and voting on it’’; a list of financial con-
cerns, including pay for gigs and rehearsals and expense re-
imbursements; and a list of ‘‘Stanley concerns’’ which in-
cluded meetings, threats to band members and musical com-
ments to band members. Friedman testified that this docu-
ment was handed out at the meeting, a fact corroborated by
Sue Terry and Respondent’s witness Laura Dreyer.
The testimony of those witnesses who were at the meeting,
including Friedman, reveals that, despite having such a de-
tailed agenda, the meeting lacked any organization. Instead,
the musicians who were present went around the room, ex-
pressing their concerns which were recorded on a blackboard
and in handwritten notes by several people, including Fried-
man. The concerns discussed and written down were similar
to those identified in Friedman’s prepared agenda. Appar-
ently no leaders or representatives were elected and no plans
made to followup the meeting with any group action. In fact,
according to the Charging Party Friedman, the musicians at
the meeting specifically rejected the idea of circulating a pe-
tition or approaching Kay and Maricle as a group. Instead,
individual musicians would each discuss one or two concerns
with either Maricle or Kay. Friedman and Terry testified that
there was a second meeting while the band was still in Flor-
ida and that the main topic at this meeting was the rumors
that Friedman was going to be fired by Kay for speaking up
about Kay’s scheduling a meeting after the rehearsal. The
band members who were at this meeting discussed ways they
could show their support for Friedman.
There is no dispute that Kay and Maricle were aware of
the band meetings as they occurred. The General Counsel of-
fered evidence to establish that Kay was hostile to the fact
that such a meeting occurred and directed this hostility to-
ward Friedman. Thus, Friedman testified that Kay said to
her, in the presence of Burt, ‘‘if you all want a band meet-
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828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Burt did not testify.
7 McSweeney testified that she called the musicians’ union within
2 weeks of returning to New York from the Florida tour and that
she spoke to other band members about this. There is no further
mention of the Union in the record. Apparently, McSweeney’s ef-
forts were not pursued. Friedman did not testify about any union or-
ganizing efforts.
ing, I’ll throw the band in the river.’’6 According to Fried-
man, on another occasion, while still in Florida, Kay told her
he loved her playing and that as long as she could keep her
mouth shut, she’d be fine. Friedman testified further that, in
this same conversation, Kay reviewed other band members
who had been fired and the reasons. However, when asked
specifically what Kay said about this, Friedman could only
recall one person mentioned by Kay and that person was
fired for musical reasons, not for being outspoken.
McSweeney testified that she heard rumors while in Florida
that Kay wanted to fire Friedman, but she could not recall
any specifics. McSweeney testified that she spoke to Maricle
about these rumors and asked Maricle to speak to Kay. Terry
testified that she was witness to a conversation in which Kay
was very upset about the fact there had been a meeting, but
she also could not recall any details of the conversation.
Kay acknowledged having a conversation with Friedman
in Florida. According to Kay, he told Friedman he wanted
to clear the air, that he didn’t know what was bothering her
but, whatever it is, he hoped she would give him her best
musically. He also told Friedman that to show his faith in
her, he would have an arrangement done for her and asked
for suggestions of music she would like to play. Friedman
conceded on cross-examination that Kay did have an ar-
rangement composed especially for her. At the hearing, Kay
at first denied he contemplated firing Friedman while the
band was in Florida. However, when confronted with an affi-
davit he gave during the investigation of the underlying
charge, Kay admitted he considered releasing Friedman be-
cause of ‘‘events in Florida.’’ When asked for specifics, Kay
testified that Friedman was causing tension and problems in
the band and that he was particularly upset that she ordered
room service delivered during the meeting he had called after
the rehearsal. Kay further testified that other band members
did approach him in Florida and asked him to give Friedman
another chance. According to Kay, this is the reason he met
with Friedman to ‘‘clear the air.’’
Upon returning to New York, Maricle distributed a memo
to band members, dated June 3, 1994, in which, inter alia,
she addressed some of the issues raised at the band meetings
which had been brought to her attention. She concluded this
section of the memo as follows:
Do not feel insecure regarding your position in Diva.
If you do your job welland agree to the given cir-
cumstances and have the best interest of the band at
heart, there won’t be a problem. Please feel free to dis-
cuss any topic with Stanley or me, if it concerns mak-
ing ‘‘things’’ better. Please Think constructively, not
destructively.
Maricle testified that she heard from as many as ten mem-
bers about the meeting, but not from Friedman, contradicting
Friedman’s testimony that she spoke to Maricle about the
band’s concerns regarding rehearsals, making the suggestion
for voluntary weekly rehearsals, a suggestion which was
adopted. Maricle was evasive when asked for specifics by
the General Counsel regarding who spoke to her about the
meetings, what they said and what led her to write the June
3 memo. Maricle acknowledged that complaints about pay
for gigs, an issue at the band meetings, was one of the con-
cerns she felt were ‘‘destructive.’’
It appears from Friedman’s testimony that nothing further
of a concerted nature occurred until November 1994.7 Ac-
cording to Friedman, at that time, during a gig in Atlantic
City, Kay called another band meeting late at night after a
performance, which upset some of the musicians. Kay told
the musicians that an upcoming California tour was very im-
portant to the band and that Respondent would be audition-
ing for subs. Although at first testifying that Virginia
Mayhew was not present for this gig and meeting, Friedman
testified that Mayhew spoke up about Kay’s plan to audition
subs. Friedman testified that Mayhew said she had a cruise
ship job which conflicted with the California tour and did not
like having her position with the band threatened because of
one job. Friedman then spoke up and said that people who
had been in the band from the beginning and shown their
loyalty should not be threatened because they couldn’t make
one gig. According to Friedman, Kay responded that no one
felt threatened and then went around the room asking each
band member if she felt threatened. Friedman testified that
she told Kay that she had felt threatened in Florida and that
Kay and Maricle responded that Friedman had a bad attitude
in Florida. No other witness testified regarding this meeting.
Friedman also testified that, after the Atlantic City gig, Re-
spondent held auditions for subs in the presence of band
members, during a rehearsal. After this rehearsal, Kay
showed the band members the CD that had been recorded in
May. The picture of the band on the cover of the CD was
not the same band that had recorded the CD. Moreover, pic-
tures purporting to be those of individual band members in-
side the CD were of musicians who no longer played with
the band and were not present for the recording. According
to Friedman, those members who were on the recording but
not pictured were upset. Friedman testified that she spoke up
and asked Kay: ‘‘What did you think . . . this band was bet-
ter looking than our band?’’ No other witness testified about
this incident.
On New Year’s Eve, 1994–1995, during a gig at Tavern
on the Green, the band members were given contracts for the
California tour. As noted above, this was the first time a
written agreement was used by Respondent. The agreement
included the itinerary for the California tour which generated
some complaints among band members because of the dis-
tance between the hotel in Palm Springs and rehearsals and
engagements in Los Angeles. According to Friedman, there
was a ‘‘buzz’’ among the musicians at Tavern on the Green
about this issue. Terry and McSweeney corroborated Fried-
man regarding the fact that band members were unhappy
with the accommodations and itinerary and discussed this
complaint amongst themselves. McSweeney testified that she
also complained about this to Whitaker, who is not alleged
to be a supervisor or agent of Respondent.
The ‘‘Agreement’’ for the California tour distributed to
band members was supposed to be returned to Kay, signed,
by January 4, 1995. Friedman testified that between New
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8 Respondent also offered the testimony of band members
Bienenfeld, Daley, Dreyer, and Kavanaugh that Friedman did not
discuss the letter with them before sending it and that they had not
authorized her to write such a letter on their behalf.
Year’s Eve and January 4 she spoke to McSweeney, Terry,
Burt and Jensen, in separate telephone conversations, and
that she discussed with these other band members the general
unhappiness with the issues which had been the subject of
earlier meetings and discussions and specific complaints
about the travel arrangements and number of rehearsals on
the California tour. Friedman testified that she told
McSweeney and Jensen that she was going to write a letter
to Kay about these concerns. McSweeney corroborates Fried-
man regarding this conversation and testified that she told
Friedman, on hearing of her plans to write a letter, ‘‘if you
do, you’ll probably be fired.’’ Terry also testified to a tele-
phone conversation with Friedman in which Friedman said
she was going to fax a letter to Kay.
There is no dispute that Friedman faxed a letter to Kay on
January 4. In this letter, after several opening paragraphs in
which she reviews her relationship with Kay and the band
and their respective contributions toward making the band a
success, Friedman wrote the following:
To make a long story short there are things that I
would like clear and in writing and signed by us both
sometime Jan. 5th. Some things have not sat well with
me or many of the others in the band. I know that we
can correct it so that the band will be truly what it is
meant to be.
Friedman then lists six areas of concern:
1. rehearsals;
2. band meetings;
3. ‘‘I want to know that I will be first call for all
Diva gigs from now through the end of the year. I do
not want to feel threatened that if I say anything or
miss a rehearsal or one gig, I will lose my chair, be-
cause I have already put in very much for the sake of
the band and deserve the same loyalty that I’ve shown.
If I am to do this tour, I need to know that I will be
first call for all Diva gigs this year.’’
4. Amplification of the piano and her need for one
extended solo per set;
5. The picture on the CD;
6. The travel arrangements for the California tour,
including her desire that the ‘‘unnecessary commute’’
and three rehearsals on gig days be changed.
Friedman concluded the letter with the following para-
graph:
Stanley, this letter I hope will be accepted by you
and signed and returned to me sometime on January
5th. It’s between you and me. If you want an honest
person, with backbone, who wants to say what she de-
serves and get it (and you can hear that in the way I
play), then please consider the reality of the things I’ve
said and what this band should be striving for. We must
be able to speak out or this band full of women will
be taking the meek role that women have always been
expected to take. If you decide this is to much for you,
then I wish you great luck with the band, and I will al-
ways know that I stood up for women having a voice.
Please sign and return this to me . . . so that I might
join you and give it my loving all in California next
week, and although underpaid, know that we will be
treated as well as possible and like the professionals we
are.
Kay and Maricle testified that upon receiving this letter,
Kay called Maricle in Japan, where she was performing inde-
pendently of Diva, and read her the letter. Kay testified that
he felt ‘‘blackmailed’’ because of the timing of Friedman’s
letter, a few days before the band was scheduled to leave for
California, and the short time she allowed for Respondent to
agree to her terms. Maricle admitted being angry that Fried-
man sent this letter, which she interpreted as an ultimatum.
Both Kay and Maricle testified that they were unaware that
Friedman was acting on behalf of, or with the authorization
of, any other band members, citing Friedman’s use of the
following sentence: ‘‘It’s between you and me.’’8 After dis-
cussing Friedman’s ‘‘demands,’’ which Kay and Maricle tes-
tified could not be met on such short notice, Kay instructed
Bienenfeld to call Friedman and tell her that Respondent
could not meet her list of demands and that they would find
a replacement for her for the California tour. Bienenfeld left
a message to this effect on Friedman’s answering machine
on January 4.
Friedman testified that she called Kay the next morning
and told him that she had received the message from
Bienenfeld stating that he could not meet her demands.
Friedman asked Kay what it was that he couldn’t meet. Ac-
cording to Friedman, Kay responded, ‘‘I don’t understand
any of it. I don’t want to talk about it.’’ Friedman testified
that she then asked Kay specifically about each of her points
in the letter, i.e., the rehearsals, the meetings, etc., and that
he responded, each time: ‘‘I don’t understand any of it. I
don’t want to talk about it.’’ Kay told Friedman, ‘‘You’ve
been a problem since the beginning.’’ Friedman finally said,
‘‘Do you understand this is a band full of women and the
women are scared to talk to you about these things.’’ Kay
replied, ‘‘You’re the only one that’s scared. I have 12 loyal
people.’’ The conversation ended at this point. There is no
dispute that Friedman was never called again to perform with
the band.
Kay testified that he received a call from Friedman the day
after receiving her letter. On direct examination, Kay testi-
fied that he merely told Friedman that he was sorry he could
not meet her list of demands. On cross-examination, how-
ever, he acknowledged that he told Friedman he didn’t un-
derstand her letter and said to Friedman: ‘‘no more discus-
sion.’’ He also admitted telling Friedman that he would rec-
ommend her to other bands, but as far as he was concerned
it was over. Kay explained at the hearing that he didn’t un-
derstand Friedman’s letter because he had never seen any-
thing like it in his 50 years in the music business. He testi-
fied that he could not meet Friedman’s specific demands on
such short notice and that the reason she did not go to Cali-
fornia is because ‘‘she didn’t want to go.’’ Respondent of-
fered no explanation for it’s failure to call Friedman to per-
form with the band after the California trip. Friedman’s name
appears on the most recent roster of women musicians uti-
lized by Respondent in selecting musicians for engagements.
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830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755
F.2d 941 (D.C. Cir. 1985), cert. denied 106 S.Ct. 313, 352 (1985),
reaffd. 281 NLRB 882 (1986), enfd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987).
10 Every Woman’s Place, 282 NLRB 413 (1986).
11 Oakes Machine Corp., 288 NLRB 456 (1988).
12 El Gran Combo de Puerto Rico, 284 NLRB 1115 (1987), enfd.
853 F.2d 966 (1st Cir. 1988); Circle K Corp., 305 NLRB 932
(1991).
McSweeney testified that she saw a copy of Friedman’s
letter as she was getting on the plane to California and that
copies were being handed out by someone whom she could
not recall. McSweeney further testified that Kay remarked
that he was happy to have Friedman gone and that Friedman
was a problem and complained and demanded too much.
Kay did not deny making these statements.
Friedman’s testimony was not entirely credible. As noted
above, she gave an internally inconsistent account regarding
an alleged meeting between Kay and the band in Atlantic
City at which Virginia Mayhew, whom she first testified was
not present, allegedly complained about lack of job security.
Because there is no corroboration regarding this meeting, I
find it did not happen. Similarly, Friedman’s testimony re-
garding ongoing conversations and discussions among band
members between the meetings in Florida and the date she
wrote her letter to Kay lack corroboration except for two
conversations she had with Terry and McSweeney shortly
before she wrote the letter. I also find significant the General
Counsel’s failure to call Elaine Burt to corroborate Friedman
regarding the conversation with Kay in Florida in which he
allegedly said he would ‘‘throw the band in the river’’ if
they wanted a band meeting. I therefore do not rely on this
evidence in reaching the conclusions below.
The credibility of Respondent’s witnesses, Kay and
Maricle, was not much better. As noted above, their testi-
mony on the issue of employee status, that musicians could
reject an offer of employment without jeopardizing future of-
fers while at the same time having no expectation of future
employment and that no employees were entitled to ‘‘first
call’’ when in fact there were at least 10–12 musicians who
were always called first, was inconsistent. Kay’s attempts to
deny he considered firing Friedman in Florida were im-
peached by a pretrial affidavit. Both Kay and Maricle were
evasive and nonresponsive when questioned by the General
Counsel about their knowledge of alleged concerted activities
of Respondent’s musicians and Friedman in particular.
Despite these credibility issues on both sides and the lack
of corroboration of some of Friedman’s allegedly concerted
activity, certain essential facts necessary to find a violation
are clearly established in the record. Thus, there is no ques-
tion that band members had group concerns related to their
job security, pay, travel arrangements, rehearsal scheduling
and other terms and conditions of employment with Re-
spondent, which concerns were expressed at group meetings
in Florida of which Respondent was aware. Maricle herself
admittedly participated in the discussions with Friedman and
the other musicians at Jensen’s house which precipitated the
band meetings in Florida. The meeting in fact was Maricle’s
idea. By her own testimony, Maricle did not attend the meet-
ings because she had heard about the complaints to be dis-
cussed and felt they were destructive. Although she did so
reluctantly, Maricle admitted being aware of what happened
at the meetings, a fact confirmed by her June 3 memo to the
musicians addressing some of their concerns. There is also
no question that Kay bore animus toward the concerted ac-
tivity in Florida and Friedman in particular. When confronted
with his affidavit, he admitted that he considered firing
Friedman because of events in Florida. He also testified that
he called a meeting in Florida because of dissension in the
band, obviously related to the fact the band members had
called their own meeting. While the evidence regarding any
ongoing concerted activity between the Florida tour and
Friedman’s letter is not persuasive, her testimony that she
spoke to other musicians before writing the letter is corrobo-
rated by McSweeney and Terry, who were credible wit-
nesses. The evidence also clearly establishes that Friedman’s
January 4, 1995 letter led directly to the termination of her
employment with the band.
In Meyers Industries,9 the Board established the test for
determining whether an employee has been discharged for
protected concerted activity under Section 8(a)(1) of the Act.
In order to be found ‘‘concerted,’’ an employee’s activity
must be engaged in with or on the authority of other employ-
ees, and not solely on behalf of the employee himself. Once
the activity is found to be concerted, an 8(a)(1) violation will
be found if, in addition, the employer knew of the concerted
nature of the employee’s activity, the concerted activity was
protected by the Act, and the discharge was motivated by the
employee’s protected concerted activity. Id. at 497. In the
second Meyers decision, the Board explained, in response to
the court’s remand, that individual activity could still be
found to be concerted under the new test if there is some de-
monstrable linkage to group action. The Board reiterated its
position that an individual employee’s actions seeking to ini-
tiate, or to induce or to prepare for group action, as well as
an individual employee’s bringing truly group complaints to
the attention of management, will be found concerted. The
question of whether an employee has engaged in concerted
activity is a factual one based on the totality of record evi-
dence. Id. at 886–887. See also Ewing v. NLRB, 861 F.2d
353 (2d Cir. 1988). Since Meyers, the Board has found an
individual employee’s activities to be concerted when they
grew out of prior group activity;10 when the employee acts,
formally or informally, on behalf of the group;11 or when an
individual employee solicits other employees to engage in
group action, even where such solicitations are rejected.12
However, the Board has long held that, for conversations be-
tween employees to be found protected concerted activity,
they must look toward group action and that mere ‘‘griping’’
is not protected. See Mushroom Transportation Co. v. NLRB,
330 F.2d 683 (3d Cir. 1964), and its progeny.
I find that Friedman was engaged in concerted activity
when she participated in the discussions leading up to the
meetings in Florida, prepared the agenda for that first meet-
ing and participated in the meetings. The concerns identified
in the prepared agenda and expressed by the musicians at the
meetings clearly relate to their wages, hours, and working
conditions. I also find that Friedman’s protest of Kay’s call
for his own meeting with the band immediately after the re-
hearsal in Florida was also concerted. Her complaint, made
in a group setting in response to a demand made on the
group implicitly enlisted the support of her fellow musicians.
Whitaker Corp., 289 NLRB 933 (1988). Accord: Imaging &
Sensing Technology, 302 NLRB 531 (1991). Moreover,
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13 The the General Counsel has cited cases holding that a refusal
to rehire or allow an employee to withdraw a resignation may violate
the Act if motivated by the employee’s Sec. 7 activity. Aero Indus-
tries, 314 NLRB 741 (1994); EDP Medical Computer Systems, 284
NLRB 1232 (1987). Friedman’s attempts to discuss her letter with
Kay, in response to the message left on her answering machine, con-
stitute an effort to preserve her employment relationship with Re-
spondent and do not evidence an intent to resign.
14 This finding is not meant to suggest that Respondent was obli-
gated to agree to Friedman’s demands. Rather, by refusing to discuss
them and telling her ‘‘it’s over,’’ Respondent effectively terminated
Friedman for making the demands. Significantly, Kay did not give
Friedman the option of working under current conditions when she
called him on January 5. Quality Pallet Systems, supra.
Kay’s testimony that he called the meeting to clear the air
because of ‘‘dissension’’ in the band and his admission that
he considered ‘‘releasing’’ Friedman from the band because
of events in Florida establish that Respondent was aware of
the concerted nature of Friedman’s activities. While it is true
that no group action resulted from the band meetings in Flor-
ida, it is clear from the agenda prepared in advance, as well
as the suggestion to circulate a petition, which was rejected
by the employees, that the objective of the meeting was
group action. The fact that attempts to induce group action
were unsuccessful does not change the concerted nature of
the activity. El Gran Combo, supra. Had Respondent termi-
nated Friedman after the Florida tour, there would be no
doubt of a violation. However, as Respondent points out,
Friedman continued to be called for every gig through the re-
mainder of 1994, despite her concerted activities and Kay’s
animus toward such activities. It was not until she wrote the
January 4 letter, almost 8 months later, that her relationship
with Respondent ended.
Friedman’s January 4 letter to Kay is ambiguous as to
whether it was written with the authorization, or on behalf,
of other employees. Although Friedman told McSweeney and
Terry that she would be writing such a letter, there is no evi-
dence that Respondent was aware of these conversations. In
the body of the letter, Friedman uses the word ‘‘we’’ and
cites concerns that do not ‘‘sit well with the band,’’ includ-
ing topics of general concern such as pay, rehearsals, and
travel arrangements. However, she also makes personal de-
mands, i.e., that she be first call on all gigs through the re-
mainder of the year and that she be given an extended solo
per set. Moreover, she specifically states in the letter that
‘‘It’s between you and me’’ and requests that Kay sign the
letter as a condition for her to play with the band in Califor-
nia. She wishes Kay luck with the band if ‘‘you decide this
is to much for you.’’ In the same paragraph, she states, ‘‘We
must be able to speak out or this band full of women will
be taking the meek role that women have always been ex-
pected to take’’ and that, if Kay accepts her letter, ‘‘we will
be treated as well as possible and like the professionals we
are.’’
Respondent argues that Friedman’s letter was a personal
demand and not an expression of protected concerted activity
and that, even if Friedman were engaged in protected con-
certed activity when she wrote the letter to Kay, Respondent
did not discharge her. Respondent relies on the language in
her letter indicating that she no longer wished to perform
with the band if Kay could not meet her demands. The last
paragraph of Friedman’s letter suggests that she would not
go to California with the band if Kay did not sign and return
her letter. Similarly, her statement, ‘‘If you decide this is to
much for you, then I wish you great luck with the band,’’
implies an intent to resign absent acceptance of her demands.
A reasonable person reading this letter could conclude that
Friedman no longer wished to perform with the band unless
Respondent, through Kay, acceded to her demands. Friedman
faxed her letter to Kay on the day employees were expected
to return the signed ‘‘Agreement’’ for the California tour
which had been distributed on New Year’s Eeve. Since she
did not return the signed agreement, the letter could reason-
ably be interpreted as her counterproposal for an individual
agreement, which Respondent would be free to reject.
Unfortunately for Respondent, however, any ambiguity in
the letter was resolved the next day when Friedman spoke
to Kay about the letter. I credit Friedman’s version of this
conversation because Kay did not specifically contradict her
testimony regarding the details of the conversation and be-
cause he admitted on cross-examination that he told her he
did not understand her letter and refused to discuss it and
‘‘as far as he was concerned, it’s over.’’ In this conversation,
Friedman clearly acted as a spokesperson for the other musi-
cians, asking him about rehearsals, meetings, and the travel
arrangements in Los Angeles and telling him that the other
musicians were scared to talk to him about these things. Kay
told Friedman she’d been a problem since the beginning, an
obvious reference to the dissension on the Florida tour. Kay
echoed this comment to other band members on the way to
Los Angeles, telling McSweeney he was happy to have
Friedman gone. As noted above, Kay never denied making
these comments. Respondent clearly was aware of the con-
certed nature of Friedman’s activity as a result of this con-
versation.
The Board and the courts have held that the test of wheth-
er an employee was discharged depends upon the reasonable
inferences that the employees could draw from the language
used by their employer. NLRB v. Downslope Industries, 676
F.2d 1114 (6th Cir. 1982); Quality Pallet Systems, 287
NLRB 1192 (1988).13 Immediately on learning that Kay
would not sign the letter and that she would be replaced for
the California tour, Friedman called Kay and attempted to
negotiate with him by asking which of her demands he could
not meet. It was Kay who refused to discuss the letter and
told Friedman ‘‘it’s over.’’ Moreover, Friedman has never
been called again to perform with the band, contrary to the
testimony of Kay and Maricle that a musician could decline
a gig and be called for future gigs. As noted above, Fried-
man’s name is still on Respondent’s roster of available musi-
cians. The finality of Kay’s statement ‘‘it’s over’’ could rea-
sonably lead Friedman to believe she’d been fired, particu-
larly when said in response to her attempt to discuss the
points raised in her letter. The fact that she filed the underly-
ing unfair labor practice charge a little over a month after
this conversation is inconsistent with an intent to resign. Ac-
cordingly, it is found that Friedman was discharged on Janu-
ary 5, 1995.14
Finally, based on Kay’s comments to other band members
during the trip to Los Angeles, that he was glad to have
Friedman gone and that she complained and demanded too
much, it is found that Friedman’s discharge would be unlaw-
ful even if her letter could reasonably be interpreted as an
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832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
individual rather than concerted act, because such a state-
ment, in the context of the earlier activity in Florida, would
tend to chill other employees in the exercise of their right
to engage in concerted activities. See Ewing v. NLRB, 861
F.2d 353, 361–362 (2d Cir 1988); El Gran Combo de Puerto
Rico v. NLRB, 853 F.2d 996, 1003 fn. 2 (1st Cir. 1988).
Based on the above and the record as a whole, I find that
Respondent terminated Friedman on January 5, 1995, be-
cause she engaged in concerted activities with other employ-
ees of Respondent for their mutual aid and protection and to
deter other employees from engaging in similar activities,
thereby violating Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Janice Friedman, was at all times
material an employee within the meaning of Section 2(3) of
the Act.
3. By terminating Friedman for engaging in concerted ac-
tivities protected by Section 7 of the Act, the Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer her reinstatement and make her whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
[Recommended Order omitted from publication.]
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