unlawful the Association's suspension of bargaining because of the Union's filing of charges, and the three hotels' withdrawal from the Association in order to avoid collective bargaining. Subsequently, the National Labor Relations Board (the Board) issued a decision and order that summarily adopted the ALJ's decision and required the Association and certain of its members to take appropriate remedial measures.

The Caribe Hilton Hotel has petitioned for review of the Board's decision and order, arguing, in part, that the Board erred in classifying the musicians who perform at the hotels as hotel employees and the band leaders as hotel supervisors. The Board has filed a cross-application for enforcement of its order against the Association and the named hotels. Because there is not substantial evidence in the record read as a whole to support the Board's characterization of the steady engagement musicians as hotel employees and of the band leaders as supervisory employees, we grant the petition for review and deny the cross-petition for enforcement of the Board's order.

Section 2(3) of the Act, 29 U.S.C. § 152(3) (1976), specifically excludes from the definition of "employee", and thus from statutory coverage under the Act, any "individual having the status of an independent contractor." General principles of agency law govern the distinction between "employee" and "independent contractor" for purposes of the Act. See, e.g., NLRB v. United Insurance Co., 390 U.S. 254, 256 (1968); Local 777, Democratic Union Organizing Committee v. NLRB, 603 F.2d 862, 909 (D.C. Cir. 1978); Lorenz Schneider Co. v.

NLRB, 517 F.2d 445, 446 (2d Cir. 1975). This Court in Herald Company v. NLRB, 444 F.2d 430, 432-35 (2d Cir.), cert. denied, 404 U.S. 990 (1971), used the common law "right to control" test for distinguishing between employees and independent contractors. Under the common law test an employer-employee relationship exists if the purported employer controls or has the right to control both the result to be accomplished and the "manner and means" by which the purported employee brings about that result. Lorenz Schneider, 517 F.2d at 451; see also Restatement (Second) of Agency § 220(1) (1958). As Judge Friendly noted, this test is difficult to apply since the result is necessarily a function of the manner and means employed. Lorenz Schneider, 517 F.2d at 451. Nevertheless, "the more detailed the supervision and the stricter the enforcement standards, the greater the likelihood of an employer-employee relationship . . . ." Id. Factors which may be considered in determining employee status include: whether the purported employee is engaged in a distinct occupation or business; whether the work involved is usually done under an employer's direction or by an unsupervised specialist; the skill involved; who supplies the instrumentalities and place of performance; the length of employment; the method of payment (by the time or by the job); whether the work is part of the employer's regular business and/or necessary to it; and the intent of the parties creating the relationship. Restatement (Second) of Agency § 220(2). No single factor is determinative, Lorenz Schneider, 517 F.2d at 449.

The ALJ relied on the following facts in finding that the hotels control the members of the steady engagement

bands. The hotels determine working hours including overtime; and the locations within the hotels where the bands play. Occasionally, the hotels require certain types of music and direct that the music's volume be increased OL decreased. The maitre d'hotel can order music stopped to speed up food service. Additionally, the hotels determine the size of the bands needed and sometimes require that size be increased to produce a certain sound,

Although these facts indicate that the hotels control each band's final product (music of the type requested by the hotels at the time and place desired), these facts fail to demonstrate any significant hotel regulation over the means by which bands produce the music. Instead, the record reveals that the band leaders exercise all the significant control over the manner of their own and their musicians' performances. The leaders hire, fire, instruct and discipline the musicians in their bands without consulting with or following any guidelines set by the hotels. In fact, Association hotel officials do not generally hire, discipline or fire individual band members; an Associa tion hotel contractually can only terminate the engagement of an entire band. Moreover, the leaders themselves, and not the hotels, select additional and replacement musicians, approve musicians' sick leave and vacations, schedule and conduct band rehearsals, and select the repertoire, instruments used, style, tempo, and other standards of performance. The leaders occasionally arrange outside employment for their bands such as television shows, club dates, single engagements and recording sessions. Although some hotels require band members to · dress uniformly during their performances, the band leaders and musicians, not the hotels, select and pay for their own uniforms.

A further indication that steady engagement musicians and band leaders are not employees of Association hotels arises from the fact that the musicians and leaders are not subject to the same personnel practices and disciplinary rules as are admitted hotel employees. For example, steady engagement musicians and band leaders do not have access to hotel grievance procedures; they do not file standard hotel job applications and do not have hotel personnel records; they do not receive hotel uniforms and are not eligible for employee paid vacations. Instead, the various steady engagement bands contract with the hotels, often through their agents, not for the services of their individual members but for the services of the entire band. In addition, while some Association hotels have issued general rules of conduct barring musicians and Leaders from drinking on stage, gambling in hotel casinos, and socializing with guests, the ALJ acknowledged that band members are not given detailed rules regulating their conduct, as are admitted hotel employees. Further, the mere fact that a hotel imposes certain restrictions on the conduct of the musicians to protect the goodwill of the hotel and the welfare of the its customers is not of Controlling significance. Cf. Lorenz Schneider, 317 F.2d at 451 (franchisor's imposition of standards upon operations of franchisee to protect goodwill not sufficient evidence of control to establish employer-employee relationship).

In short, the record in this case indicates that the Association hotels exercise control over the type, time and location of music produced by the steady engagement bands; nevertheless, it does not appear that they have the right to exert any significant authority over the manner in which either the band leaders or the musicians perform. Ibus the evidence establishes that the steadily-engaged

hotel musicians are not hotel employees. but rather' employees of their band leaders,

Given the musicians' status as employees of the band leaders, we must determine whether the band leaders are independent contractors or hotel supervisors. The Board argues that even if the Association does not exercise over the musicians and leaders that quantum of direct control normally demonstrative of an employer-employee relationship, the band leaders are hotel supervisors who exercise control over the musicians in the capacity of autonomous department heads, such as a chef or maitre d'hotel. We find this argument unpersuasive. Leaders usually form their bands before contracting with Association hotels. Most bands bear their leader's name and build up their reputations under that name. Leaders sometimes arrange outside engagements for their groups, evidencing an independent entreprenurial status not normally associated with the staffs of hotel kitchens or dining rooms. Significantly, leaders usually deal with Association hotels through booking agents and are not subject to the same hotel personnel procedures as are chefs and maitre d's.

Although the record contains references to a few instances in which bands stayed on at Association hotels with new leaders after their original leaders had left, there are also references to whole groups remaining together and moving to different engagements. In fact, one of the groups that had stayed on intact when its original leader left later became a new group and then moved on intact under the group's subsequent leader. Thus, the steadilyengaged musical groups controlled by the band leaders have an independent identity that is not characteristic of hotel departments.