Young & Rubicam International, Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1976

226 N.L.R.B. 1271 (N.L.R.B. 1976)

YOUNG & RUBICAM INTERNATIONAL, INC. 1271
Young & Rubicam International, Inc., and
ASMP-The Society of Photographers in Commu-
nications,' Petitioner. Case 2-RC-17304
December 2, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Howard
Shapiro on May 25, 26, 27, and 28; June 1, 2, 3, 7, 8,
9, 11, and 14, 1976. Following the hearing, and pur-
suant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, the Regional Director for Region 2 trans-
ferred this case to the National Labor Relations
Board for decision. Thereafter, the Employer and the
Petitioner filed briefs with the Board.
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 reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, including the
briefs of both parties, the Board finds:
1. The Employer, a New York corporation with its
principal place of business located at 285 Madison
Avenue, New York, New York, is a general advertis-
ing agency. During the past year, the Employer re-
ceived gross revenues in excess of $1 million, of
which more than $50,000 was derived from clients
outside the State of New York. Therefore, because
the Employer meets any of the discretionary jurisdic-
tional standards which the Board applies, we find it
will effectuate the policies of the Act to assert juris-
diction herein.
2. Petitioner contends that it is a labor organiza-
tion which seeks to represent certain employees of
the Employer. The Employer takes the position that
the individuals which Petitioner seeks to represent
are not employees within the meaning of the Act,
and therefore that Petitioner is not a labor organiza-
tion. However, the Employer stipulated at the hear-
ing that Petitioner is a labor organization on the con-
dition that the individuals it seeks to represent are
found to be employees within the definition of the
1 The name of the Petitioner appears as amended at the hearing
Act. If the conditional stipulation offered by the Em-
ployer is not appropriate, the record is insufficient to
show that Petitioner is a labor organization as de-
scribed in Section 2(5) of the Act. Thus, whether Pe-
titioner can be regarded as a labor organization for
purposes of this proceeding depends on whether we
decide that a question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act. In view of our conclusion
below that the individuals in question are not em-
ployees within the meaning of the statute, we find
that the record does not show Petitioner to be a labor
organization as defined in the Act.
3. No question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(l) and 2(6) and
(7) of the Act.
Petitioner seeks a unit composed of all freelance
professional photographers employed by the Em-
ployer in New York County to render photographic
services for advertisements intended for the print me-
dia, and who engaged in or performed such services
for the Employer on not fewer than 3 shooting days,
and for advertising agencies (including the Em-
ployer) on not fewer than 12 shooting days, during
the 12-month period from October 1, 1974, to Sep-
tember 30, 1975. The Employer, on the other hand,
contends that the freelance photographers which Pe-
titioner seeks to represent are independent contrac-
tors, and not employees within the meaning of the
Act. Further, the Employer argues that even if the
individuals in question are found to be statutory em-
ployees, the unit sought by the Petitioner is inappro-
priate, and that the voting eligibility formula used by
the Petitioner is also incorrect. Because we agree with
the Employer that the freelance photographers who
would be included in the petitioned-for unit are inde-
pendent contractors rather than employees, we do
not reach the unit and eligibility issues raised by the
Employer.
Before reviewing the particular facts of the case
and the specific applicable case law, a summary of
the general principles which guide us in determining
independent contractor status may be useful.
Basic Principles
Section 2(3) of the Act excludes "any individual
having the status of an independent contractor" from
the definition of employee. Drawing upon the legisla-
tive history to the amendment in 1947 of Section 2(3)
in regard to independent contractors, the Supreme
Court has concluded that independent contractor
status is to be determined by assessing "the total fac-
226 NLRB No. 186
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tual context . . . in light of the pertinent common-
law agency principles." N. L.R.B. v. United Insurance
Company of America, 390 U.S. 254, 258 (1968). Fore-
most among such principles is the "right to control"
test, which the Board described in News Syndicate
Co., Inc., 164 NLRB 422, 423-424 (1967):
Where the one for whom the services are per-
formed retains the right to control the manner
and means by which the result is to be accom-
plished, the relationship is one of employment;
while, on the other hand, where control is re-
served only as to the result sought, the relation-
ship is that of an independent contractor. The
resolution of this question depends on the facts
of each case, and no one factor is determinative.
Among other relevant agency factors are the skills
required in the occupation; whether the one em-
ployed is engaged in a distinct occupation or busi-
ness; whether the employer or the one employed sup-
plies the instrumentalities, tools, and place of work
for the job; the length of time for which the individ-
ual is employed; the method of payment (by time or
by job); whether the work to be performed is part of
the regular business of the employer; whether or not
the parties believe they are creating an employer-em-
ployee relationship; and whether the employer is or
is not in business. See Restatement (Second), Agency
§ 220, pp. 485-486 (1958).
Bearing in mind these general criteria, a careful
outline of the operative facts adduced at the hearing,
viewed in light of cases involving analogous circum-
stances, discloses that the individuals sought to be
represented by the Petitioner have the status of inde-
pendent contractors.
Facts
The Employer, as noted, is a general advertising
agency. Work begins on an advertisement for a client
with the development of a general creative strategy
or concept. This concept is then translated into a
rough draft of a proposed advertisement by an art
director, who is responsible for the graphics and vi-
sual appearance of the ad, and by a copywriter, who
contributes the editorial content of the ad. If the
rough draft is found satisfactory, it is further refined
into a more finished version of the ad called a layout.
If the layout is approved by the client, the next step is
usually final production of the advertisement.2
Because most print media advertisements involve
the use of photographs, the Employer must select a
photographer to transform the visual aspect of the
2
Occasionally, the client may request a more sophisticated layout, re-
ferred to as a comprehensive, before the ad is produced
layout into a suitable picture for the ad. The
Employer's policy is to use only freelance photogra-
phers to do the final photography for an advertise-
ment.' The art director working on the particular ad
to be produced and an art buyer generally select the
photographer for the assignment. A photographer
may be chosen for a job in one of three ways: by
competitive bidding, in which the lowest bid, from
among those submitted by three photographers
whom the Employer asked to bid is selected; by com-
parative bidding, in which the skills of each of the
three photographers requested to bid as well as the
prices asked are taken into account in making the
final choice; or by single choice, in which a photog-
rapher is chosen based on his creative abilities, be-
cause the client prefers a certain photographer, or for
some other reason, without bidding.' Most photogra-
phers are chosen on a comparative bid basis.
Before the photographer undertakes the actual
shooting for the advertisement, either he or his busi-
ness representative discuss the details of the assign-
ment with the art director by telephone and/or in
person at a "preproduction" meeting. An art buyer
and other individuals working on the account may
also attend the preproduction meeting. Such matters
as selection of models, the location of the shot if it is
to be on location, the use of props, the lighting and
background of the shot, etc., are considered during
the preproduction conference. The photographer,
however, is responsible for the casting of models,
where needed, subject to approval of the art director,
and for searching out locations if the shot is not to be
taken in his studio.
In the overwhelming majority of cases, the actual
shooting for the advertisement takes place in the
photographer's studio, rather than "on location." Be-
sides the photographer, his assistant, and the art di-
rector, others present at the shooting may include
models, home economists (for food shots), stylists (a
special type of photographic assistant), executives as-
signed to the account for which the ad is being pro-
duced, and representatives of the client.
Seven photographers testified at the hearing about
various aspects of their activities, and much of their
testimony centered around their working relationship
i There appear to be two reasons for this policy One is to avoid a possible
conflict of interest in the eyes of the client by assigning work to a staff
photographer, who may be of limited ability The other is to enable the
Employer to draw upon a large pool of talented photographers in selecting
the best photographer for a cer'ain job
The Employer provides each photographer it requests to bid on a job
with an art estimate form, which contains the vital information about the
assignment and which the photographer uses to estimate his fee plus the
amount of certain reimbursable expenses he expects to incur The photogra-
pher is also furnished with a copy of the layout of the ad for which the
photograph is desired When a photographer has been selected to do a job,
a purchase order form is executed, which is an authorization for the fob to
be performed at the approved cost, including known reimbursable expenses
YOUNG & RUBICAM INTERNATIONAL, INC. 1273
with the art director during a shooting . Generally,
the photographers agreed that it is common for them
to take Polaroid pictures of the objects and/or
models arranged for the photograph for the art direc-
tor to inspect, and to allow the art director, and
sometimes representatives of the client or others, to
look through the lens of the camera at the arrange-
ment . The purpose of both practices is to enable the
art director to instruct the photographers to make
whatever changes are considered necessary so that
the finished photograph will conform to the concept
expressed in the layout.
The record shows that art directors give instruc-
tions at the shooting on such matters as position of
props and models , wardrobes , appearance of food in
food shots, intensity and type of lighting , angle from
which the photograph should be taken, changes in
background color , and use of a wide angle lens. It
appears , however , that although the art director sees
to it that the photograph is made along the lines sug-
gested by the layout, the photographer selects the
photographic means by which the art director's in-
structions in this regard are carried out. In this con-
nection , various photographers testified that such
matters as the types of cameras , filters, lights, lenses,
etc., which should be used are within their profes-
sional discretion . One of the photographers called to
appear at the hearing by Petitioner summed up her
understanding of her relationship with the art direc-
tor in executing an assignment in this way,
I am hired to do the job that is required of me
by that art director . . . . an art director gives me
a layout and I consider my responsibility to exe-
cute the photograph that to the best of my abili-
ties satisfies the requirements of that art direc-
tor's layout.
When the shooting has been completed, the photo-
grapher develops black and white pictures in his own
darkroom, and sends any color pictures to an outside
laboratory to be developed. Afterwards, the photog-
rapher sends a large selection of prints or chromes to
the art director, who decides which photographs
should be used in the actual advertisement.
Besides information concerning the selection of
freelance photographers for assignments by the Em-
ployer and about how photographic jobs are carried
out, the record contains considerable evidence re-
garding other factors relevant to a determination of
whether the individuals in question are employees or
independent contractors.
1. The record indicates that freelance professional
photographers are highly skilled and talented indi-
viduals. They acquire their skills by earning a college
degree in photography , by taking courses at photo-
graphic schools, or by lengthy apprenticeships as as-
sistant photographers. Each photographer has at
least one specialty , such as fashion , fashion illustra-
tion, illustration, or still life. Photographers are cho-
sen to bid on assignments based on their particular
skills and specialties , and the work itself is creative in
nature.
2. At least 19, and perhaps as many as 25, of the
35 photographers who would make up the bargaining
unit desired by the Petitioner conduct their activities
as New York corporations. In pertinent part, it was
stipulated that all the certificates of incorporation
substantially provide that the purpose of the corpora-
tion is to-
engage in and conduct a business and to operate
a photographic studio, to engage representatives
and assistants , to take photographs and to pro-
cess same or have same processed and to per-
form such additional services permitted by law
that are necessary or proper to carry out the pur-
poses of the corporation after [sic] its business
activities.
Two of the unincorporated photographers who testi-
fied at the hearing stated that they pay New York
State and New York City unincorporated business
taxes. Also, none of the photographers who appeared
at the hearing listed fees paid by the Employer as
wages on their Federal and state income tax returns,
because the corporate photographers filed corporate
tax returns and the others paid unincorporated busi-
ness taxes.
3. It was also disclosed at the hearing that the Em-
ployer pays sales taxes on the fees it pays to the free-
lance photographers whose services it utilizes. The
Employer does not withhold Federal , state , or city
income taxes from the fees it pays to the photogra-
phers, nor does it take any of the other usual em-
ployer deductions such as for social security. The
Employer also provides no fringe benefits to the
photographers, such as vacation and holiday pay, life
insurance, retirement and profit-sharing benefits,
and hospital and surgical insurance , even though its
regular employees receive all these benefits.
4. Each freelance professional photographer rents
a studio in which, as noted , he executes most of the
photographic assignments he receives . These studios
include a darkroom, and some are equipped with a
kitchen (for food shots), offices and conference
rooms, and dressing rooms for models. Each photog-
rapher , of course , pays for utility services for the
studio, as well as necessary insurance coverage, such
as for fire , theft , and property damage.
In addition, freelance photographers have a con-
siderable capital investment in much highly expen-
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive and sophisticated photographic equipment,
which they use to complete their assignments.
Among the photographers who gave testimony at the
hearing, the cost of the equipment ranged from
$15,000 to $80,000, and the present value of the
equipment was estimated at between $15,000 and
$95,000 and $100,000. Some photographers also have
a major investment in studio fixtures and furnishings
in addition to the photographic equipment.
5. All but one of the photographers at the hearing
employed at least one full-time employee. Each
photographer, except one who uses a freelance assis-
tant, had at least one full-time photographer 's assis-
tants Some photographers also employ a full-time
secretary, stylist, and/or bookkeeper. Of the seven
photographers who gave testimony, one had five full-
time employees, one had four; one had three; one
had two; two had one; and one had none. One
photographer also employs two part-time assistants.
The photographers make the common employer de-
ductions from the paychecks of their employees for
such items as Federal, state, and city income taxes,
social security, etc. They also furnish such benefits to
their employees as paid vacations and holidays, and
some even provide a pension and profit-sharing ar-
rangement and major medical coverage. Naturally,
the employees receive the protection of workmen's
compensation and unemployment insurance cover-
age.
In addition, each photographer employs a business
representative or agent who is compensated on a
commission basis. The agent's job is to seek assign-
ments for the photographer, to prepare cost estimates
on jobs, to negotiate fees, to attend preproduction
meetings on behalf of the photographer, and to pre-
pare and submit bills for completed work.
6. Aside from finding work through the assistance
of an agent, freelance photographers commonly ad-
vertise in a trade book which is a directory of pho-
tographers. Photographers also seek work by means
of direct mail advertising to potential employers, and
by displaying portfolios containing samples of their
work to possible employers.
7. Except in rare cases in which a "day rate" is
paid for certain types of work, the Employer com-
pensates the photographer for his services with a flat
fee. The most important consideration in deciding
the amount of the fee is the intended use of a photo-
graph. The highest fee is payable for a photograph
which is to be used in an advertisement in a national
magazine of unlimited circulation. The next highest
fee, two-thirds to three-fourths of the full price, is
5 The assistant performs such tasks as setting up and moving props and
lights , setting up and loading cameras , developing film, etc
paid for use of a photograph in an ad in a magazine
of limited national circulation. A still lower fee, rang-
ing between one-half and three-fourths of the full fee,
is paid for a photograph which is expected to run in
an advertisement in a trade publication. Finally, an
agreed-upon "day rate" is paid for experimental
photography-photography which may or may not
result in a photograph which will be used in an ad-
vertisement. An additional fee must be paid for a
different or additional use of a photograph, unless
the Employer buys the right to unlimited use of a
photograph. Such an outright purchase of a photo-
graph is uncommon.
Other factors involved in deciding the amount of
the flat fee include the complexity of thejob, the skill
of the photographer, the type of film required, and
the length of time it is estimated it will take to do the
job. However, once the fee is fixed the photographer
must usually complete the assignment at the same
cost even if it takes longer than at first expected. If
the Employer wants a "reshoot" of ajob for a reason
other than the fault of the photographer, the photog-
rapher will generally receive about one-half the origi-
nal fee for the extra work.
The flat fee payable to the photographer by the
Employer for a job also covers certain expenses
which the photographer may incur in executing the
assignment. Certain other expenses, however, are
reimbursed by the Employer. In general, the fee in-
cludes the straight-time salaries of photographers' as-
sistants working on the job, the time of salaried of-
fice staff employees such as a secretary or
bookkeeper devoted to work relating to the assign-
ment, the commission of the agent for time spent on
the job, black and white film and processing, color
film and processing to the extent that the charge does
not exceed 10 percent of the flat fee, film for Polar-
oid cameras, use of the studio (which the photogra-
pher rents, furnishes, and supplies with utilities), use
of the appropriate photographic equipment (which
the photographer owns, maintains, and insures). On
the other hand, the Employer will reimburse the
photographer for such expenses as overtime pay for
staff employees working on the job, color film and
processing charge where the charges exceed 10 per-
cent of the total fee (the entire color film and pro-
cessing charges are reimbursed for experimental
photography), costs incurred in searching for and se-
curing locations for location shots, rental of props
and wardrobes, costs of set construction, and food,
lodging, and travel expenses where incurred.
8. The record also reveals that freelance photogra-
phers are at liberty to accept or reject a request by
the Employer to bid for or perform an assignment.
Nor does the Employer require any photographer to
YOUNG & RUBICAM INTERNATIONAL, INC. 1275
execute a certain number of assignments for it over a
length of time. In fact, each of the photographers
testifying at the hearing performed the vast majority
of his or her total number of assignments in 1975 for
advertising agencies other than the Employer. The
relevant figures appear to be about 6 assignments
done for the Employer out of a total of 150 jobs for
one photographer, and 3 out of 150, 6 out of 120, 6
out of 28, 3 out of 180, 12 out of 200, and 7 out of
200, for each of the others.6
Conclusions
When the relevant case law is applied to the fore-
going facts, the conclusion that the freelance photog-
raphers which Petitioner seeks to represent are inde-
pendent contractors becomes evident.
In the first place, we cannot accept Petitioner's
chief contention that the general supervision of the
art director over a photographer's execution of an
assignment satisfies the Board's "right to control"
test expounded in News Syndicate Co., Inc., supra As
explained at the outset, "right to control" refers to an
employer's retention of control over the manner and
means by which the individual providing services
performs the Job, rather than to control over the de-
sired result. We are satisfied that the nature of the
instructions which an art director may give to a
photographer at a shooting (such as the angle from
which the photograph should be taken, how models
and props should be positioned, intensity of the light-
ing, and so forth) are given to insure that the final
product conforms as closely as possible to the con-
cept represented in the layout. The technical and
creative means by which the photographer carries
out the instructions of the art director and satisfies
the requirements of the layout are left to the profes-
sional judgment of the photographer-which is logi-
cal because it is his professional skill in such matters
that the photographer is hired to provide.
The Board faced a similar issue in Associated Musi-
cians of Greater Newark, Local #16, American Feder-
ation of Musicians, AFL-CIO, 206 NLRB 581 (1973),
affd. 512 F.2d 991 (C.A.D.C., 1975), a secondary
boycott action. In that case, a restaurant and lounge,
The Manor, hired an orchestra leader to lead a band
which he provided at its place of business. Respon-
dent contended that the musicians playing in the
band were employees of The Manor, and not part of
an independent contracting arrangement between
the orchestra leader and The Manor, because The
Manor insisted that "certain kinds of music not be
played in the lounge, that the musicians maintain the
appearance required by the management, and that
certain behavior considered offensive to the guests of
the Manor (smoking or drinking on the bandstand)
be avoided, and reserved the right to set and change
the hours of performance." 206 NLRB at 589.
In a decision adopted in pertinent part by the
Board, the Administrative Law Judge rejected Re-
spondent's assertion that the restaurant and lounge
retained significant control over the manner of the
musicians' performance, as opposed to the end result,
and noted that, "the service contracted for was not
merely music, but music that would be pleasing to
the customers of the Manor and attractively present-
ed in the circumstances." 206 NLRB at 589. Simi-
larly, in the instant case, what the Employer is con-
tracting for is a photograph which will faithfully
express the creative idea embodied in the layout, and
the type of instructions given to a photographer by
an art director properly relate to this end rather than
to the technical means by which that goal is
achieved. Perhaps the point is best conveyed by the
following analogy drawn by the Administrative Law
Judge in Associated Musicians: "When one engages a
contractor to build a house, the contractor does not
become any less independent because the purchaser
determines the kind of house, where it is to be
placed, the kind of materials to be used, the times of
construction, or even the times of day when building
shall take place . . . ." 206 NLRB at 589.'
Another case relevant to the issue of "right to con-
trol" is American Broadcasting Company, a Division of
American Broadcasting-Paramount Theatres, Inc., et
al., 117 NLRB 13 (1957), in which composers who
accepted assignments to write music for radio and
television programs were found to be independent
contractors. After accepting an assignment, the com-
poser would meet with a producer to discuss the type
of music needed for the program and the technical
details involved. If the producer and the composer
happened to disagree about the specifications for the
music, the composer would accede to the wishes of
the producer and would write the music accordingly.
In making its independent contractor finding, the
Board stated, "Because of the nature of the art of
musical compositions, the specifications which CBS
transmits to a composer of necessity relate principal-
ly to the effects to be produced by the music and not
to the manner in which that effect is to be achieved."
7 It is also noteworthy that the orchestra leader in Associated Musicians
was found to be an independent contractor even though his band played
exclusively for The Manor for 8 or 9 years Thus, the instant situation, in
which freelance photographers work only a small portion of their time for
the Employer, is far more compelling for finding independent contractor
status Furthermore , like the present case , the musicians in Associated Musi-
6 it should be noted in addition that the Employer made approximately clans did not receive the job benefits to which regular employees of The
350 photographic assignments to some 150 photographers in 1975 Manor were entitled
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
117 NLRB at 18. Again, the analogy to the present
case suggests itself . The producer instructs the com-
poser to follow certain specifications to achieve the
desired musical effect , just as the art director in-
structs the photographer to make certain visual ad-
justments to insure that the proper concept is ex-
pressed in the photograph.
Finally, as to the "right to control" question, in
Boston After Dark, Inc., 210 NLRB 38 (1974), which
will be considered in greater detail below , freelance
contributors to a weekly newspaper were found to be
independent contractors, even though their work was
subject to "correction or substantive editing" by the
employer.
In addition to the "right to control " issue , virtually
all other relevant factors point convincingly to the
conclusion that the freelance photographers whom
the Petitioner seeks to represent operate as indepen-
dent businessmen rather than serving as employees.
Thus, each photographer rents and maintains a
studio at his own expense in which he executes most
of the assignments which he receives from advertis-
ing agencies , and in which he develops the photo-
graphs which result. Each photographer has a heavy
capital investment in sophisticated photographic
equipment needed for him to accept jobs, and all but
one of the photographers testifying at the hearing
had at least one full-time employee , from whose sal-
ary employer deductions are taken and who receives
certain fringe benefits as an employee . Also, the ma-
jority of the photographers who would be included in
the Petitioner ' s proposed unit are incorporated as
businesses , and none of the photographers report the
fees received from photographic assignments on indi-
vidual income tax returns as wages but instead file
corporate or unincorporated business tax returns. All
freelance photographers employ agents on a commis-
sion basis to perform certain business tasks and to
solicit jobs. Many photographers also advertise in a
trade directory and/or by direct mail to get assign-
ments. Freelance photographers are at liberty to ac-
cept or reject assignments from the Employer or re-
quests to bid for assignments. Each of the
photographers who appeared at the hearing spent
only a relatively small proportion of his time making
photographs for the Employer.
Of great significance also is the fact that the Em-
ployer pays the photographer a flat fee for his ser-
vices on an assignment in nearly all cases. The Em-
ployer pays sales taxes on the fee, does not take any
of the usual employer deductions out of the fee, and
does not provide the photographer with any fringe
benefits in addition to the fee. The fee paid to the
photographer by the Employer is based mainly on
the intended use of the photograph, rather than the
time needed to do the job, and the Employer must
pay a further fee for an additional or different use of
the photograph unless it buys the rights to the photo-
graph outright . Generally, no additional fee is paid if
a job takes longer to complete than anticipated. Fur-
ther , some of the expenses incurred by a photogra-
pher in doing a job are not reimbursable from the
Employer, and consequently the photographer de-
pends upon having a profit left over when his non-
reimbursable expenses are subtracted from the flat
fee.
It should also be remembered that freelance
photographers are highly skilled and creative individ-
uals, who are selected for jobs in large part for their
talent and expertise in a specialized field of photog-
raphy.
In this connection Boston After Dark, supra, is rele-
vant. There, the employer, a weekly newspaper, paid
freelance contributors a flat fee for each article,
photograph, or cartoon accepted for publication. The
employer took no payroll deductions out of the fees
paid to the freelancers , and granted them no fringe
benefits which regular staffers received . The free-
lancers were permitted to contribute material or not
as they wished each week, and they were free to con-
tribute to other publications as well . Some of the
freelancers spent as much as half their time at the
newspaper office , and some depended almost entire-
ly on the fees they received from the newspaper for
their livelihood . On these facts, the Board found the
freelancers to be independent contractors , relying
principally on their ability to contribute to the news-
paper at their pleasure to distinguish them from staff
employees.
The facts in Boston After Dark are comparable to
those in the instant case. Here the record is unambig-
uous that photographers are free to accept or reject
requests by the Employer to bid for an assignment or
to perform an assignment . As in Boston After Dark,
the photographers are compensated on a flat fee for
each job, and the employer takes no deductions from
the fee , nor does it give fringe benefits to photogra-
phers in addition to the fee. Unlike Boston After
Dark, and strongly supporting the conclusion that
they are independent contractors, the photographers
do not do their work at the Employer 's premises, and
none of those who testified at the hearing depend
heavily for work from the Employer to make a living.
Also pertinent is Century Broadcasting Corporation
d/b/a WFMF, 198 NLRB 923 (1972), in which the
Board decided that certain freelance radio announc-
ers were independent contractors . In that case, the
general manager of a radio station conducted audi-
tions for announcers , seeking individuals "who have
substantial broadcasting experience and are skilled
YOUNG & RUBICAM INTERNATIONAL, INC. 1277
in projecting a slow, deliberate, adult sounding voice
in keeping with the image the station seeks to main-
tain ." 198 NLRB at 923. If approved, an announcer
would be placed on a list at the station. Thereafter,
announcers would be contacted in rotating order
from the list to determine if they would be available
for a taping session at a specified time. There was no
supervision at the taping session, as the "inflections,
pauses, idiom, and mood projected on a particular
announcement" were left to the announcer's discre-
tion. The announcers were free to accept or reject
each assignment, or to obtain a substitute, and there
were no restrictions on their work for other stations.
The announcers received a flat fee for their services
from which deductions were not taken. The radio
station did not provide the announcers with fringe
benefits available to regular employees.
Century Broadcasting and the instant case are
clearly similar in that the individuals in question are
selected for work based on talent and experience;
they are free to accept or reject assignments; they
receive flat fees, out of which employer deductions
are not taken, for their work; they do not qualify for
fringe benefits which staff employees receive; and
the employer does not control the manner and means
by which the services are performed (though the ra-
dio station uses an audition to make sure its require-
ments for jobs are met, while the Employer uses gen-
eral supervision by the art director over the end
product at the shooting for the same purpose).
Finally, in La Prensa, Inc., 131 NLRB 527 (1961),
a freelance newspaper photographer was found to be
an independent contractor. In La Prensa, a newspa-
per agreed to pay a photographer, who had formerly
been a staff employee, a flat fee for each photograph
accepted for publication. The photographer used his
own supplies and equipment, but used the newspa-
per's developing room. In making the finding of in-
dependent contractor status, the Board stressed that
the photographer depended upon the difference be-
tween the fee he received for each photograph and
the cost of his materials to realize a profit. Thus, in
the Board's opinion, the photographer most closely
resembled a "small entrepreneur" rather than an em-
ployee of the newspaper. It should be added that the
photographer in question also had the right to sell his
work to other publications.
The entrepreneurial character of the photogra-
pher's operations in La Prensa is quite like that of the
freelance photographers' methods of doing business
in this case. As explained earlier, the flat fee which
the photographer receives from the Employer covers
a number of expenses for which the freelancer is not
reimbursed, and thus his profit is based upon the dif-
ference between the fee and the nonreimbursable ex-
penses he incurs. As the Employer correctly points
out, this case is stronger than La Prensa for finding
independent contractor status, as these freelancers
have a much heavier investment in equipment and
studio rental and maintenance, and because they also
must pay the salaries of assistants.
In short, we find the freelance photographers
whom the Petitioner seeks to represent to be inde-
pendent contractors and we shall dismiss the petition
herein.
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.