The National Labor Relations Board, in what may be a parting decision before a possible hiatus, has determined that musicians playing for local orchestras in at least three states have the right to join a union.
The NLRB, in a 2-1 decision, ruled that musicians with the Lancaster Symphony Orchestra in Pennsylvania count as employees rather than independent contractors. The decision reversed a 2007 ruling from an NLRB regional director.
In reversing the decision, the national board found that even though the musicians are free to choose which programs they want to perform, their situation most resembles that of a run-of-the-mill employee once they commit.
"Once they are selected to work in relation to a particular program, the musicians' control over their worktime ends," the ruling stated.
The board cited the fact that directors set the musicians' hours and dress codes and other standards -- by contrast, the majority reasoned, a contractor like a roofer can negotiate the schedule for a roofing job.
The board made a similar determination for the Cape Cod Symphony Orchestra in Massachusetts and the Plano Symphony Orchestra in Texas.
Brian Hayes, the lone Republican on the three-member board, dissented. He cited the same reasoning as the regional director in the 2007 decision, noting symphony orchestra musicians do not have to play exclusively for any employer and are paid on a per-performance basis.
Hayes claimed the musicians are clearly independent contractors.
The split decision comes as the NLRB faces a possible shutdown. The board needs to keep at least three members to maintain a quorum, but the recess appointment of member Craig Becker is expiring.