Orchestras Out of Tune with NLRB

dv1970026Anyone who’s been watching employment law the last few years knows that the National Labor Relations Board has been steadily expanding the boundaries of union activity. One realm where this is happening is a place many probably don’t see as a workplace at all: the stage of a symphony hall.

In a pair of recent decisions, the NLRB has ruled that orchestra musicians are employees entitled to unionize even if they perform just a few times a year in concerts that last only a couple of hours. Even though they are free to take a gig or not. Even though they use their own instruments.

We’ll get to the reasoning in a minute. But first, a disclosure: I’m an amateur French horn player and in my college days made a meager living by playing with semi-professional orchestras in the San Francisco Bay Area. It wasn’t much money — a few hundred dollars for several rehearsals and a concert or two — but the gigs added up and my standard of living was low at the time. I was, for several years, a card-carrying member of the American Federation of Musicians Local No.6, AFL-CIO.

Big professional orchestras across the country — anything from the New York Philharmonic, say, to the San Antonio Symphony in Texas — hire musicians as full-time employees with contracts that provide often healthy six-figure salaries with benefits. But even many smaller orchestras, with far smaller budgets, commonly have union contracts as well — even if their musicians make peanuts.

While performing is typically a hobby for musicians in a small-city orchestra, some players can make a living by cobbling together work with many local orchestras and teaching. Plus, there’s a tradition of unionization in live music that dates back to the days before television. So it’s more complicated than you might think.

While unionization is a given in many markets, some orchestras have resisted it. But they’re not getting a sympathetic hearing from the NLRB under the current administration.

In April the U.S. Court of Appeals for the D.C. Circuit upheld a board ruling against the Lancaster Symphony Orchestra, based in south-central Pennsylvania. The board ruling held that the orchestra’s musicians were not independent contractors, but employees entitled to union representation. With similar reasoning, an NLRB regional director in late July ruled in favor of musicians who perform with a Boston theater company.

Those cases are aren’t alone. Along with its original ruling in the Lancaster case in 2011, for example, the NLRB issued similar findings for orchestras in Cape Cod, Mass. and Plano, Texas.

The board majority’s reasoning sheds an interesting light on the usual test of whether a worker is an independent contractor or employee. In the 2011 Lancaster ruling, the board noted that the musicians have a choice whether to perform on a given concert set or not, which weighs in favor of independent contractor status.

But that is outweighed, the board majority found, by other factors favoring employee status. The musicians have no control over their working conditions — from what they wear to how they behave on stage — and in many other respects are subject to strict control by the conductor.

In a minority opinion, dissenting then-member Mark Hayes weighed the balance differently. He argued that many factors, including the musicians’ ability to skip a concert set to take other work or for any other reason, made them independent contractors.

Another issue is hovering quietly in the background: Most small-city orchestras are barely able to make ends meet. I remember a conversation with a conductor backstage before a performance one night. All it would take for the orchestra to go bankrupt, she said, would be for the musicians to decide they wanted just a little more money.