be incredible evidence the significant evidence with regard to entrepreneurial opportunity and in so doing minimized the control factor elevated rather the control factors and misapplied its own board precedents in the performing arts areas when it comes to the independent contractor analysis so rather than recognize the independent contractor task as it's developed in its own presidents particularly in the area of the performing arts the board elevated a mechanistic application of the right to control factors essentially backpedaling from its own own its precedent and in doing so mischaracterize the insignificant facts of economic opportunity and didn't recognize frankly in the record a lot of the factors that should the musicians do have control over not only their own employees to do their work so they were i mean they were really highly it has found what that the factors of entrepreneurial opportunity in the performing arts industry and i would turn to you and dissenting or hayes because he articulated it so well is the ability for these musicians to says in the fed ex case there was enormous open real opportunity for the drivers within the relationship with federal express but here there doesn't there doesn't that true they can work elsewhere and they can worse they can't they can't work smarter and earn more money they can i tend guess to more and are more money they can work more hours they can work more gigs but they can't actually leve hours to be ready for that one and so that's how i leverage my skill that's true that's when we just learn if i am engaged in opportunities then if i'm in a significant musician and i into trouble though when you start to talk about leaving time for other opportunities i think what we're really the questions are asked him to focus on it must be the case that the entrepreneurial opportunity is within the confines of the relationship between these workers and her own who is you know deciding what poses a strike what to you know where it is here you have people who their breath their posture their timbre their their bowing his control by a conductor but just going back to the to the question of entrepreneur opportunity if you accept just then maybe this isn't the way to go but if you are it takes that for purposes of argument that the on the entrepreneurial opportunity in corrie is focused on within the relationship between these parties and the best i think that we've done this morning is to say well maybe you could practice smarter and take on a season that's all broken and you're you know if you could efficiently get ready for each each concert the ones would like us are the ones with baltimore the ones with who are you know whoever else anything else right and so that the musicians also have the ability to weigh different different jobs in a different prices and they have you know you back out  simply are strikes at all the concerts that they're willing to give me and then i say well you know i have some students who could really use some more kestrel experience i'm going to subcontract out to those students and i'm actually going to pay them a third of what right right ok do we have anything in the record about who gets paid for that whether the substitute would then get paid directly or whether i would get paid and have to make arrangements to pass that money on to the substitute right there's nothing in the record that i think either way  two where it said on the control test has also been viewed by them for his powers to function freely and to work outside of the nuclear system in freelancing agents calculated to produce a livelihood and the cases that were cited in the workplace but also as this board recognized in comedy store and pennsylvania having a fine arts has particular application to the performing arts so i don't think that there is any conflict now and in fact this court recognise that there which is is that a new rule of law i thought you you are in your brief that they fail to reason timely should be able to rely on it what's your position on whether that's just  degree of emphasis depending on the facts of the case or whether this actually any requirement that we do other than look at all the factors as the particular case as appropriate to the particular sure absolutely and i  see an overwhelming amount of entrepreneurial opportunity talent waiting sort of the control factors here the board i think made very clear that to be intended that the control factor and the entrepreneur opportunity factor we heavily in favor of finding employees status so i don't know that you need to look at hallie has higher looking at the anything principles based on the facts i think the more here found that there is no true in the sense that this horse spoke to you in facts there is no war did here to the boardwalk to the fact that they have their kids put it so you know he didn't say they don't want to do that and said absolutely entertainment industry that's just not right absolutely and i think that goes especially i do think there are as of a matter of professional courtesy that individual as soon as they know or hopefully for six weeks in advance we'll notify the symphony they can't show and they make a commitment to help us find a substitute you know that there is no evidence in the car and if i unfamiliar with and then expect that the person who didn't show would get a payment from a line cancer center here so and i'm not even sure logistically how that would work but there's certainly no way of evidence in the apartment that there's a proprietary interest in any sort in the sea itself my ability to play in the orchestra i mean as soon as she added it to me i think one of the things that makes this case feel little difficult is that it's not a fulltime job it's not even a part time job it's kind of the seasonal i mean if you think about it seven week long stand spread over a half a year but it could be seven weeks what if it was what if what we're dealing with was a lancaster humanities festival and there was a true one we and a shakespeare theater the next week and a musical theater the week after that and an orchestra the week after that and each of them was had artists that were in a parallel position to the musicians here but we're only there for a week but they came back year after year after year with those people the employees see i don't know not why not because i think because one of the factors here is one of the expectation i mean that the board looks at right as the length of the relationship so once you start taking and it's a close call in all three i think entrepreneur opportunity has to be within the relationship because in a way the fact that this is one facet of a whole career i'm not sure why but it does seem to militate against the board's results here i  but there they are night after night in europe so we wouldn't have any we wouldn't have i don't think the same or on at least i'll ask a question that i advise i am that but quite honestly i can't speak for the board but i'll say i think all of the factors were identical and the only thing that changed was that you show up for one week as a practical matter all you've described then is part time employment whether that change whether the board with then say wait a minute is this sufficiently not enough like part time employment such that there's a different way we're going to look at entrepreneurial opportunities when and why has never said this but i do wonder if it could change it is that if it does the entrepreneur opportunity change and i'm going to look beyond just within the employment relationship between the putative employ relationship between the employer and the employee but now that there are fifty one weeks on the table maybe that's going to be different i have no idea how the world will come on that but i do think it's a it's a significant enough twist on it that it would be in would raise a different sort of question  how do you think your state of new fits in the way we should look at this case i think on the facts what the federal court has said is that between two thoroughly conflicting views that if the board makes a reasonable choice between those two i one would read the ones i just said reading the words decision no i don't think that there is there's certainly a conflict i don't think it's reasonable now i think the board makes quite clear that the control factors and the lack of entrepreneurial opportunity doesn't m in the case you'll understand that the board and get to some of the factors that it didn't even consider and control of the facts but also misapplied the tast and when we look at the board's decision it says nor does the fact the musicians can work for other orchestras weigh heavily in favor of finding an independent contractor status we give little weight to this factor so this entrepreneurial factor that this court itself has shown the evolution of since the comedy store is completely dismissed by the b of the regular business of the provider and they're using facts and they said well that might weigh that might be a factor that we take into consideration but it's not determined if you're giving the overwhelming other instances of economic opportunity and so i don't know that they necessarily reached out to the performance industry to make the analogy because there are so many drivers he says quite frankly that are out there that we're in the minority when it comes to board decisions and i don't know for a fact that the  this court reached out to that but i just wanted to make the point that in the court's decision it factors such as musicians controlling their own instruments insuring their own instruments the basically under the rug is a non factor as well as the fact that they were highly skilled saying that they point to no clear direction when in fact under the testing you pointed some really hard to really hard on the control because you know musicians it's hard to think of a job in which the control is greater  of the total control the conduct of the virtual room but that's on the record in this case that's a record in this case that the board conveniently cites the board in its decision quite frankly ignoring other aspects of the record that i think are telling here of putting the control and the union sole witness also testified that there's a lot of interaction between the conductor and the audience more so than the conductor and the musicians so the for half of the time that the conductor present with the musicians he is not doing that and one of the important things that's also in the record is i was rereading it is the place where these performances occur which is the fulton opera house in lancaster is built for a play right it is not built for a symphony so this conductor necessarily needs to tell people to be louder needs to tell people to come in because of acoustics of the venue it's not necessarily that they're controlling the means in a manner right because that's the