Orchestra's Control Showed Musicians Are Employees

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By Lawrence E. Dubé

April 19 — Musicians who sign up to perform in seasonal concerts for a Pennsylvania orchestra are employees, not independent contractors, and they have the right to engage in collective bargaining through a union, the U.S. Court of Appeals for the District of Columbia Circuit held.

The Lancaster Symphony Orchestra classified the musicians as independent contractors, but the National Labor Relations Board determined they are employees and ordered the orchestra to bargain with an American Federation of Musicians local after the musicians voted for union representation.

The D.C. Circuit said it owes no special deference to the NLRB in applying federal labor law to undisputed facts, but it drew an important distinction between such cases and those where the board is faced with contrasting factual contentions.

Judge David S. Tatel said the orchestra's independent contractor claim was disputed by the musicians' union and undermined by evidence its conductor exercised “virtually dictatorial authority” over the musicians. Tatel said the NLRB was responsible for weighing conflicting evidence, and the court “must defer to the Board's conclusion that the Orchestra's musicians are employees.”

NLRB Certified Union for Orchestra Players

According to the decision and NLRB records, AFM Local 294, the Greater Lancaster Federation of Musicians, filed a petition in June 2007 seeking an NLRB representation election among the orchestra's musicians.

An NLRB regional director dismissed the petition on the ground that the musicians were independent contractors, but the board reversed in 2011, finding 2-1 they were employees under the National Labor Relations Act (357 N.L.R.B. 1761, 192 LRRM 1105 (2011); 248 DLR AA-1, 12/28/11).

The union prevailed in a representation election, but the orchestra refused to bargain. The NLRB found the refusal was unlawful (358 N.L.R.B. No. 104, 193 LRRM 1209 (2012)), and the employer petitioned for review.

Musicians Accept Invitations to Perform

According to the court, the LSO offers a series of classical music programs each year, and it seeks musicians by distributing information packets and single-season contracts to individuals who have performed with the organization before.

The agreement recites that the musicians will be independent contractors, and an information packet warns they will have no taxes withheld from their pay.

Musicians, who can accept or decline the invitation to participate in any of the LSO performances, are paid for each concert and rehearsal they attend.

Mixed Evidence on Employee Status

Tatel said the reviewing court, like the board, would consider the independent contractor issue under the 10-part test described in Section 220(2) of the Restatement (Second) of Agency.

The first factor, the court said, is the “extent of control” exercised by the organization. Applying the factor to the Pennsylvania orchestra, Tatel wrote, the evidence “demonstrates that the Lancaster Orchestra regulates virtually all aspects of the musicians' performance.”

In addition to following the artistic direction of the conductor, Tatel found that the LSO instructs the musicians on their posture and conduct. He said “we think it quite clear” that the orchestra “closely supervises” the means and manner of the musicians' performances.

On the other hand, the appeals court said, the musicians' considerable skill, along with their relatively short seasonal engagements at LSO supported the orchestra's argument they were independent contractors, as did the agreements each musician signed.

Court Defers to NLRB Resolution of Conflicting Views

Tatel said the NLRB doesn't have any special expertise in applying the law of agency to undisputed facts, but he observed that the D.C. Circuit wrote in FedEx Home Delivery v. NLRB, 563 F.3d 492, 186 LRRM 2292 (D.C. Cir. 2009) (75 DLR AA-1, 4/22/09) that when a case presents “two fairly conflicting views,” the court should defer to the board's determination that disputed workers are employees under the NLRA.

Denying the LSO's petition for review, the court enforced the NLRB's order requiring the orchestra to bargain with AFM Local 294.

Judges Cornelia T. L. Pillard and Stephen F. Williams joined in the opinion.

Jill S. Welch of Barley Snyder LLP in Lancaster, Pa., argued for Lancaster Symphony Orchestra. NLRB attorney Barbara A. Sheehy in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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