Pennsylvania Academy of the Fine Arts

National Labor Relations Board - Board Decisions

Dec 6, 2004

343 N.L.R.B. 846 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 93
846
Pennsylvania Academy of the Fine Arts and Ameri-
can Federation of State, County & Municipal
Employees, District Council 47. Case 4–RC–
20710
December 6, 2004
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH AND
MEISBURG
On April 9, 2003, the Regional Director for Region 4
issued a Decision and Direction of Election in which she
found that the petitioned-for artists’ models are statutory
employees under Section 2(3) of the National Labor Re-
lations Act. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board’s Rules
and Regulations, the Employer filed a timely request for
review, contending that the models were independent
contractors and that the petition should be dismissed. By
Order dated February 11, 2004, the Board granted the
Employer’s request for review. The Employer and the
Petitioner filed briefs on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, includ-
ing the briefs on review, we find, contrary to the Re-
gional Director, that the models are independent contrac-
tors under the Act. Consequently, we dismiss the peti-
tion.
Facts
The Employer operates a school and museum in Phila-
delphia. Its art school offers a 4-year certificate program,
a 2-year Masters of Fine Arts, continuing education pro-
grams, and children’s programs. The contested individu-
als model for art classes at the Academy. About half of
the classes use models regularly.
The models sign contracts with the Academy for each
semester. Carey Gates, the models and properties coordi-
nator, draws up a list of class dates and times for which a
model will be needed, and the models can choose which
available classes they wish to work. The resulting sched-
ule is part of the semester contract.
The pay rate is set forth in the contract. The models are
free to undertake other modeling work outside of the
Academy.
The contract states that the models are independent
contractors. Either party can cancel the contract on 2
weeks’ notice. The models are not subject to evaluations
or discipline. However, the contract also states that the
Academy can immediately cancel the contract based on
the model’s “lateness, absence, failure to fulfill sched-
uled commitments, or refusal to comply with reasonable
requests.” The only evidence of the Academy’s canceling
a model’s contract is from the spring semester of 2003.
In that instance, a model’s contract was canceled because
of egregious tardiness and absenteeism.
Classes are approximately 3 hours long; models are
paid for the entire class for which they are scheduled,
regardless of whether their services are needed for the
entire 3 hours. The number of hours worked by different
models varies greatly, ranging from 1.5 to 226 hours in
the period from July 1 to September 28, 2003.
The contract gives the instructors only the right to de-
termine the general pose assumed by the model. The con-
tract states the “specific form of a pose, including ward-
robe, will be left to [the models’] discretion, so long as
the form meets the general requirement requested by the
instructor for said pose.” The models testified that often
they are given only general instructions, such as “stand-
ing, leaning on one hip,” and it is up to the models to
determine the particulars of the pose.
The models bring their own robe and shoes to wear on
their breaks, and some sort of cloth “for their private
areas” for sitting and reclining poses. If they wish, the
models may bring additional equipment such as padding
and poles to support poses. The Academy provides tim-
ers, heaters, lamps, and other equipment to the models.
The contract prohibits the models from speaking with the
students while posing and sets the length of the poses and
breaks.
The models do not receive most of the benefits offered
to the Academy’s employees and do not receive an em-
ployee handbook. The models receive IRS 1099 forms,
rather than W-2 forms.
Analysis
To determine whether individuals are statutory em-
ployees or independent contractors, the Board applies the
common-law agency test, which considers all the inci-
dents of the individual’s relationship to the employing
entity.1 See Roadway Package System, 326 NLRB 842
(1998); Dial-A-Mattress Operating Corp., 326 NLRB

1 The Board generally considers 10 factors, derived from the com-
mon-law Restatement of Agency, to be among those relevant to this
inquiry: (1) the length of time the individual is employed; (2) the
method of payment, whether by time or by the job; (3) whether the
employer or the individual supplies the instrumentalities, tools, and
place of work; (4) whether the individual is engaged in a distinct occu-
pation or business; (5) whether the employer is “in the business”; (6)
the skill required in the particular occupation; (7) whether the employer
retains the right to control the manner and means by which the result is
to be accomplished; (8) whether the parties believe they are creating an
employment relationship; (9) whether the work is part of the em-
ployer’s regular business; and (10) whether the individual bears entre-
preneurial risk of loss and enjoys entrepreneurial opportunity for gain.
See BKN, Inc., 333 NLRB 143, 144 (2001); Roadway Package System,
326 NLRB 842 (1998); and Dial-A-Mattress Operating Corp., 326
NLRB 884 (1998).
PENNSYLVANIA ACADEMY OF THE FINE ARTS 847
884 (1998). We conclude that the evidence demonstrates
that the models are independent contractors under this
test.
Each semester, the models alone decide whether to
work for the Academy during that semester. If they
choose to do so, they exercise complete control over their
own schedule; they decide how many classes to accept
and what hours to work. Further, the models choose
which specific classes they will accept. Thus, they may
choose their schedule according to which professors they
prefer, which types of classes they prefer, which class
times are convenient for them, or on any other basis they
wish. Some models have chosen to work only 1.5 hours
in a semester, while others have chosen to work hundreds
of hours in a semester. The models’ freedom to control
their own schedule with the Academy is sweeping, de-
spite the minor constraints noted by our dissenting col-
league. Moreover, in exercising this freedom and choos-
ing how many hours they wish to work for the Academy,
the models can control their earnings. The extent to
which the models control their own schedules and earn-
ings strongly supports independent contractor status.
Likewise, the models’ method of pay supports a find-
ing of independent contractor status. The models are paid
per class, not by the hour or on a salary basis. See Young
& Rubicam International, 226 NLRB 1271, 1274 (1976).
They do not receive most of the benefits that the Acad-
emy’s employees receive. See DIC Animation City, Inc.,
295 NLRB 989 (1989). Further, each contract is valid
only for a semester; the Academy and the models have
no ongoing relationship indicative of employee status.
In an employer-employee relationship, the employer
generally supplies the instruments and tools of work.
Here, the models supply their own robes and slippers and
are sometimes requested to bring costumes. If they prefer
to use padding, poles, and other equipment to support
their poses, the models supply those items themselves.
The record establishes that models are engaged in the
distinct occupation of modeling. The models can work
for other schools or independent artists and set their own
fees when they do so.2 Thus, if a model can earn more
from these other sources, she can minimize her hours
with the Academy and maximize her outside employ-
ment. Contrary to our dissenting colleague, we find that
the freedom to take as many or as few jobs as one wishes
and to work for various employers is highly indicative of
independent contractor status. See DIC Animation City,
295 NLRB at 990; Young & Rubicam International, 226
NLRB at 1274–1275.

2 Model Cheryl Breese testified that she considers modeling her
“self-employment.”
The evidence demonstrates that the models have a high
level of skill. Our dissenting colleague minimizes the
significance of the record evidence demonstrating the
skills necessary to strike and hold a pose. One model
testified that her job is to discern what the class needs
and decide how to best meet those needs in her pose, a
process she considers “artistic and creative co-creation”
with the instructor and the students. Another model testi-
fied that she uses numerous skills in the course of model-
ing, including her understanding of light and shadow,
color, and composition, and physical skills in holding
strenuous poses for long periods of time. The Academy
offers the models contracts with the expectation that they
have the professional modeling skills to perform the job
competently; they do not receive any on-the-job training
and the Academy does not supervise the quality of their
work. Indeed, the models are not subject to evaluations
or discipline, as are employees of the Academy. Com-
pare NLRB v. United Insurance Co. of America, 390 U.S.
254, 258–259 (1968).
Furthermore, the evidence indicates that the Academy
sets only a general requirement for a pose. The particular
manner of fulfilling that requirement is left to the discre-
tion of the model. The Academy controls only the re-
sult—the look of the pose—not the means by which the
model achieves that result. As one model put it, she “al-
most always” has “discretion in the exact pose.” Con-
trary to our dissenting colleague, we find that the evi-
dence establishes that the models retain significant dis-
cretion over how they perform their work, which
strongly supports independent contractor status.3 See The
Comedy Store, 265 NLRB 1422, 1422 (1982).
In addition, the Employer is in the business of provid-
ing instructions to art students. The models are in the
different business of modeling.
Finally, the contract between the models and the
Academy explicitly reflects each participant’s under-
standing that the models are independent contractors.
Consistent with this, they receive an IRS Form 1099 for
miscellaneous income, rather than IRS Form W-2 for
wages paid to employees.
For these reasons, we find that the models are inde-
pendent contractors. Therefore, we reverse the Regional
Director’s findings and dismiss the petition.

3 Contrary to our dissenting colleague, our decision does not “poten-
tially exclude all those engaged in creative endeavors” from employee
status under the Act. Whether an individual is engaged in a creative
endeavor, physical labor, or any other type of work, the issue is to what
extent the employer controls not only the result of the work, but the
means by which the result is accomplished. We find that in this particu-
lar case, the models retain wide discretion both in the pose itself and the
means by which the pose is accomplished. Our decision is not nearly as
sweeping as our colleague suggests.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD848
MEMBER WALSH, dissenting.
In finding the models who work for the Academy to be
independent contractors, my colleagues have failed to
take a step back and look at all of the incidents of the
relationship between the models and the Academy, as
Board law requires, to determine if the models are truly
independent contractors rather than employees. They
have also underemphasized the factors that tend to show
employee status, while exaggerating many of the factors
that point the other way. In my view, by no stretch of the
imagination can these models, whose terms and condi-
tions of employment are constrained and determined in
so many different ways by the Academy, be considered
independent business people in their relationship with the
Academy. The Academy has simply not met its burden
of proof to show that they are independent contractors.
Accordingly, I dissent.
I. THE APPLICABLE LEGAL STANDARD
The party seeking to exclude employees as independ-
ent contractors has the burden of proving that status.
BKN, Inc., 333 NLRB 143, 144 (2001). Here, therefore,
the burden is on the Academy to show that the models
are independent contractors. The Board applies the
common-law agency test to determine whether individu-
als are statutory employees or independent contractors.
This determination “ultimately depends upon an assess-
ment of all of the incidents of the relationship with no
one factor being decisive.” See NLRB v. United Insur-
ance Co., 390 U.S. 254, 258 (1968), enf. 154 NLRB 38
(1965).
The relevant factors include (1) whether the employer
retains the right to control the manner and means by
which the result is to be accomplished; (2) whether the
individual is engaged in a distinct occupation or busi-
ness; (3) whether the individual bears entrepreneurial
risk of loss and enjoys entrepreneurial opportunity for
gain; (4) whether the employer or the individual supplies
the instrumentalities, tools, and place of work; (5) the
skill required in the particular occupation; (6) whether
the parties believe they are creating an employment rela-
tionship; (7) whether the work is part of the employer’s
regular business; (8) whether the employer is “in the
business”; (9) the method of payment, whether by time
or by the job; and (10) the length of time the individual is
employed. See, e.g., BKN, Inc., supra, 333 NLRB at 144;
Roadway Package System, 326 NLRB 842 (1998). This
list of factors is not exhaustive, and the same set of fac-
tors that was decisive in one case may be unpersuasive
when balanced against a different set of opposing factors
in another case. See Roadway Package System, supra,
326 NLRB at 850. In sum, the Board balances all the
incidents of the employment relationship in order to de-
termine whether the circumstances demonstrate an em-
ployment relationship between employer and employee
or a business arrangement between an independent con-
tractor and client.
II. ANALYSIS
The Academy’s Right to Control
My colleagues emphasize the models’ freedom to
choose their assignments. However, this freedom is
sharply constrained by their contract with the Academy.
The models are not completely free to choose their own
hours; they must select among preset classes, and once
they have made that choice they are required to be pre-
sent during a specific period of time, from 15 minutes
before the scheduled start of class until the end of class.
Moreover, if the models are not needed in their sched-
uled assignment, they may not leave but must report to
the models and properties coordinator for reassignment
to any classroom in which a model is needed, even if
they do not wish to model for that class or that instructor.
They are not free to turn down the alternate assignment.
Such constraints are indicative of employee status—an
independent contractor can generally determine her own
hours and choose to accept or decline assignments at her
complete discretion.
The contractual arrangement between the Academy
and the models is indicative of an employer-employee
relationship in other respects, as well. The models have
no meaningful opportunity to bargain. The Academy
uses a standard contract, with standard fees, for all mod-
els, regardless of the skill or experience of the model.
The models must either accept or reject the contract as is.
Moreover, the contract dictates many details of employ-
ment. The models may not speak to students while pos-
ing. Models must hold poses for 20 minutes when physi-
cally possible and are only entitled to a 5-minute break
every 20 minutes. They must cover their body and put
shoes on while they are not posing. Models can be termi-
nated for lateness, absence, or insubordination.
The Academy’s instructors dictate the models’ poses.
The record demonstrates that the instructors commonly
dictate the general elements of the pose that they deem
important to the class objectives, but leave the specific
elements of the pose to the model’s discretion. My col-
leagues minimize the instructors’ control over the mod-
els’ pose and emphasize the models’ contractual right to
determine the specific form of their pose, subject to the
instructor’s general directions. They conclude that the
models have discretion over the manner in which they
fulfill the instructor’s required result. I disagree. The
majority exaggerates the significance of the models’
PENNSYLVANIA ACADEMY OF THE FINE ARTS 849
discretion. The models cannot be said to have control
over the means by which they accomplish their work
when the instructors are physically present and review-
ing every element of their body position. The discretion
to hold one’s hand palm up or palm down, for instance,
is not the type of control that is indicative of independ-
ent contractor status. The fact remains that the Acad-
emy, through its instructors, dictates the models’ poses,
despite the fact that the models may be able to choose,
for instance where to place their hand or foot while
executing the pose designated by the instructor. To base
a finding of independent contractor on this very limited
discretion would potentially exclude all those engaged
in creative endeavors from the statutory definition of
employee.
Distinct Occupation or Business
The models are not engaged in a distinct business.
Contrary to my colleagues’ contention, their opportu-
nity to undertake modeling work outside of their rela-
tionship with the Academy does not establish that they
are independent contractors engaged in a distinct busi-
ness. It simply indicates that they work part-time for the
Academy. It is common for part-time employees in all
fields to have more than one job at a time. Moreover,
the models depend heavily on the Academy for a large
portion of their work during the academic year. For
example, Cheryl Breese, although she described model-
ing as her “self employment,” in fact testified that the
Academy provided 50 percent of her work in Spring
2002 and 90 percent of her work in Fall 2003. This pat-
tern of work is certainly more consistent with part-time
employment than it is with being an independent con-
tractor.
Entrepreneurial Opportunity and Risk
The models do not bear an entrepreneurial risk of loss
or enjoy an entrepreneurial opportunity for gain. Entre-
preneurial risk and opportunity exist when an individ-
ual’s profit is dependent on his ability to recoup in the
contract fee the investment he has incurred, in terms of
time or money expended, in obtaining and fulfilling the
contract. See, e.g. BKN, Inc., supra, 333 NLRB at 145.
The models risk nothing by contracting with the Acad-
emy. They expend minimal time obtaining the contract;
they merely attend a brief interview with the models
and properties coordinator. Compare DIC Animation
City, Inc., 295 NLRB 989, 991 (1989) (writers exert
time, effort, and travel to solicit work for which they
will not get paid if their ideas are rejected). The models
do not incur a significant financial investment in meet-
ing their responsibilities under the contract. Compare
DIC, supra, 295 NLRB at 991 (writers invest in offices,
computers, software, typing assistance).
Nor do the models have any entrepreneurial opportu-
nity for gain. They do not have the opportunity to in-
crease their income from the Academy under future
semester contracts based on good performance or inge-
nuity, as the Academy has one standard fee it pays all
models regardless of their experience or past perform-
ance. The only way they can increase their income from
the Academy is to accept more hours of work as offered
by the Academy. Contrary to the views of my col-
leagues, the availability of more work, in itself, does
not constitute the opportunity for entrepreneurial gain
indicative of independent contractor status. See BKN,
Inc., supra, 333 NLRB at 145; compare DIC, supra, 295
NLRB at 991.
Tools and Instrumentalities of Work
Contrary to my colleagues’ contention, the Academy
in fact provides most of the necessary tools and instru-
mentalities of the models’ work, including timers, heat-
ers, lamps, costumes, and all other necessary tools.1 The
models are contractually required to bring a robe and
shoes to wear on their breaks, and some sort of cloth
“for their private areas” for sitting and reclining poses.
None of these items are specific to models—they are
ordinary pieces of clothing. Any other items they might
bring, such as padding, poles, or other equipment to
support their poses, are also not crucial to their work for
the Academy and are primarily for their own comfort.
My colleagues have placed far too much reliance on the
fact that the models bring in their own robes and slip-
pers and other personal comfort items; this is clearly
not an indication of independent contractor status.
The Skill Required
There is no support in the record for my colleagues’
contention that the models have a “high level of skill.”
In fact, these models have no special training and there
is no specific training or experience required to work
for the Academy. Models and properties coordinator
Carey Gates testified that he does not hire models based
on their previous experience; when he discusses the
contract with them he ascertains by looking at them
whether their form will be helpful in the Academy’s
classes. It appears that all individuals who request mod-
eling work with the Academy are offered work. Thus,
the models’ skill level does not support my colleagues’
conclusion that they are independent contractors. See
United Insurance, 390 U.S. at 259 (that debit agents

1 Models and Properties Coordinator Gates is responsible for manag-
ing the various equipment the school maintains for use during any
modeling session.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD850
had no prior training or experience one of several “de-
cisive factors” in finding them to be statutory employ-
ees).
Whether the Work Is Part of the Academy’s Regular
Business
The use of models is a regular element of the Acad-
emy’s business. About half of all classes use models
regularly and the use of models is an important part of
the Academy’s curriculum. The majority fails to ac-
knowledge the significance of this factor, which sup-
ports the conclusion that the models are employees.
Factors Tending to Support Independent Contractor
Status
There are some factors that tend to support independ-
ent contractor status, but those factors are much less
significant than my colleagues make them out to be and
are clearly outweighed by the factors supporting em-
ployee status. For example, I do not consider the par-
ties’ stated understanding of their relationship to be
highly significant. I recognize that the Academy desig-
nates the models as independent contractors in their
contracts, does not provide them with benefits offered
its other employees, and distributes 1099 tax forms
rather than W-2 forms. These are secondary indicia,
however, and as such are in themselves insufficient to
establish that the models are independent contractors.
See, e.g., Ridgewell’s, Inc., 334 NLRB 37 (2001). An
employer cannot change the employment status of his
employees simply by calling them independent contrac-
tors or by failing to provide them with benefits be-
stowed upon its admitted employees.
In addition, I acknowledge that the Academy is not in
the business of modeling. However, the function of the
models is not tangential to the Academy’s business. The
Academy is in the business of providing art education,
and the models play an important role in its educational
programs.
The models are paid by the class, not by the hour.
However, the amount paid per class is based on their
previous per hour rate. Moreover, the change from an
hourly wage to payment per class was made after the
issue of the models’ employment status arose and was
intended specifically to be compatible with the Acad-
emy’s position that the models are independent contrac-
tors.2 In light of these circumstances, I find, contrary to
my colleagues, that the significance of this factor is
diminished.

2 Gates testified that he recommended the change because “it made
sense, you know, as independent contractors, you pay independent
contractors by the job.”
The fact that the models sign semester-long agree-
ments would ordinarily tend to support independent
contractor status. However, in this case, the relevance
of this arrangement is mitigated by the fact that all
models are offered renewal contracts each semester as
long as they continue to show up on time to their
scheduled classes. Some of the models have worked for
the Academy continuously for years. In practice, there-
fore, once a model begins to work for the Academy, the
model can expect continued employment barring gross
misconduct. This suggests an employer-employee rela-
tionship.
CONCLUSION
Considering all the factors and viewing the relation-
ship as a whole, the conclusion is inescapable that the
Employer has not met its burden of proof. I agree with
the Regional Director that the overwhelming weight of
the factors tips in favor of finding employee status. In
reaching this conclusion, I particularly rely on the mod-
els’ lack of entrepreneurial risk and opportunity for
gain, the level of control over the models exercised by
the Academy, the lack of skill or training necessary to
obtain a modeling position with the Academy, and the
extent to which the Academy relies on models to oper-
ate its business. These factors clearly outweigh those
that would seem, on the surface, to support independent
contractor status. When the relationship is viewed as a
whole, it is clear that the Employer has not met its bur-
den of showing that these models are independent con-
tractors. Accordingly, I dissent.