NLRB finds musicians at three symphony orchestras are employees, not independent contractors

The National Labor Relations Board has found that musicians playing for symphony orchestras in Pennsylvania, Massachusetts and Texas are employees, not independent contractors, and therefore are eligible to vote on whether they want union representation.
In a 2-to-1 decision in Lancaster Symphony Orchestra, issued Dec. 27, the Board reversed the Regional Director’s decision to dismiss an election petition and sent the case back to the region for further action.
In unpublished decisions issued the following day, citing Lancaster, the Board also found that musicians at the Cape Cod Symphony Orchestra and Plano Symphony Orchestra are employees.
In Lancaster, the Board examined numerous factors and found they weighed heavily in favor of employee status. For instance, although musicians have some control over their work by choosing whether or not to bid on programs, “once they are selected to work in relation to a particular program, the musicians’ control over their work time ends.” The Board noted that orchestra management sets work hours, payment schedules, dress codes and standards for behavior, among other things. The Board also found that the musicians do not enjoy entrepreneurial opportunity or suffer risk because their fees are set and cannot be negotiated.
Chairman Mark Gaston Pearce and Member Craig Becker voted to approve the decisions. In his dissent in Lancaster, applying the same multi-factor analysis as the majority, Member Brian Hayes found the factors to weigh strongly in favor of finding the musicians to be independent contractors. Pertinently, as to the right of control factor, Member Hayes argued that, under Board precedent, the relevant question is “whether the musicians retain discretion to accept or decline to work with the employer and to play elsewhere,” and concluded that, in this case, they do. In addition, he found that the musicians’ freedom to take as many or as few jobs as desired and to work for various employers demonstrated their entrepreneurial opportunity for gain.