Are the musicians of a symphony orchestra employees with the right to join a union or independent contractors excluded from the protections of the National Labor Relations Act? Fans of the acclaimed Amazon Studios series Mozart in the Jungle might assume an answer based on the many accomplishments of the drama’s star organizer and contract enforcer, ‘Union Bob’. A recent decision of the D.C. Circuit chimes in on the issue with an ear toward themes from the law of agency.
Enforcing an NLRB order finding that musicians of the Lancaster Symphony Orchestra are statutory employees with rights to join an American Federation of Musicians local, the case shows how employee status under the NLRA turns on an ensemble of factors, including employer control, the degree of skill required to perform the job, and the entrepreneurial opportunities workers actually have. Lancaster Symphony Orchestra v. NLRB, 206 LRRM 3096, 2016 BL 123386 (D.C. Cir. 2016).
According to the court, the orchestra offers a series of four or so concerts a year. Musicians who wish to perform each season sign an agreement saying they’ll will work as independent contractors.
Seeking to represent the orchestra’s musicians, the Greater Lancaster Federation of Musicians, Local 294 filed a petition for certification with the NLRB.
On the record
Following a hearing that included testimony by the orchestra’s CEO and its principal trombonist as well, the board’s regional director found that the musicians were independent contractors and dismissed the petition.
The NLRB disagreed. It conducted a representation election, and the union won.
When the orchestra refused to bargain with the newly-certified union, the union filed an unfair-labor-practice charge, and the board found the orchestra had violated the NLRA.
The orchestra petitioned the D.C. Circuit for review, and the board cross-applied for enforcement of its order.
‘Decidedly unharmonious standards’
The court began its review by noting that a polyphony of factors based on the common law of agency determine the outcome.
Listing 10 tests from the Restatement (Second) of Agency and an 11th one involving “significant entrepreneurial opportunity for gain or loss,” the court found that some point toward employee status, some point toward independent contractor status and one points in no clear direction at all.
Suggesting contractor status were a trio of factors: the court found that musicians require a high degree of skill, the orchestra engages them only a short time, and their employment agreement says the orchestra won’t withhold taxes.
Slowing the tempo to treat the extent of employer control, the court found that the orchestra’s conductor “exercises virtually dictatorial authority” over the way the musicians play. Here, the court lent an ear to Pulitzer Prize-winning music critic Tim Page, who wrote that Arturo Toscanini used to render Wagner’s “Siegfried Idyll” in about 15 minutes, while Glenn Gould could drag it out for 25.
The court also found that the musicians’ work “is a part of the regular business of the employer,” and that their limited entrepreneurial opportunity, like freedom to pursue teaching, provides only minor support for contractor status.
The factor of “instrumentalities, tools, and … place of work,” the court found, pointed in no clear direction at all, since both the musicians and the orchestra supplied things like instruments, chairs, music stands and performance spaces.
Settling the score
Finding that the case thus presents a choice between “two fairly conflicting views,” the court softened its dynamics to a moltodiminuendo and upheld the board’s order.
A classic example of deference to the agency, the result underscores how much discretion the board often has in deciding an employee is covered by the NLRA, even when the applicable employment agreement sings quite a different tune.
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