Musicians In 3 Orchestras Can Have Union Vote, NRLB Rules

Symphony orchestra musicians in Pennsylvania, Massachusetts and Texas now have the option to play under a different set of rules.

Musicians In 3 Orchestras Can Have Union Vote

Musicians In 3 Orchestras Can Have Union Vote

The NRLB has determined they are not independent contractors, but employees and are eligible to vote on whether they want union representation. In a 2-to-1 decision issued 27 December 2011, regarding the Lancaster Symphony Orchestra, the NRLB reversed the regional director’s decision to dismiss an election petition and sent the case back to the region for further action.

Musicians Want More Control

In the Lancaster decision, the NRLB 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 NRLB noted that orchestra management sets work hours, payment schedules, dress codes and standards for behavior. The NRLB also found that the musicians do not enjoy entrepreneurial opportunity or suffer risk because their fees are set and cannot be negotiated.

NRLB Chairman Mark Gaston Pearce and board  member Craig Becker voted to approve the decisions.

In his dissent in Lancaster, applying the same multi-factor analysis as the majority, board member Brian Hayes found the factors to weigh strongly in favor of finding the musicians to be independent contractors. Hayes argued that 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 they do in this case. 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.

In unpublished decisions issued the following day, citing Lancaster, the NRLB also found that musicians at the Cape Cod Symphony Orchestra and Plano Symphony Orchestra are employees and not independent contractors.

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