NLRB says we can be unionized – for now

In what may be the last NLRB decision in a long time, a few days ago the Board ruled that musicians in several per-service orchestras were employees and not independent contractors, and thus could force their employer to recognize their union as bargaining agent:

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In unpublished decisions issued the following day, citing Lancaster, the Board also found that musicians at the Cape Cod Symphony Orchestra and Plano Symphony Orchestra are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.

Why “the last decision” for a long time? Because one of the three members (two seats are vacant) is leaving the Board because his appointment was a recess appointment, made after Republicans in the Senate threatened to filibuster his nomination. And, as the Supreme Court has decided that the Board needs three members for a quorum, and as Republicans have threatened to filibuster any more appointments by President Obama, and as the House is refusing to allow the Senate to recess in order to deny Obama any opportunity to make recess appointments, it appears the NLRB will be unable to make any decisions during 2012, and perhaps beyond.

So we should be glad they made this one. It’s worth reading in full. Also worth reading in full is the dissent by Brian Hayes, the one Republican member of the Board. Some of the logic of his dissent (included in the document linked to above) would apply as well to full-time orchestra musicians as it does to per-service workers:

Looking beyond the musicians’ control over where, when, and for whom they will work, I disagree with my colleagues’ conclusion that the musicians’ control over their work ends once they decide to perform with the Symphony. To be sure, at that point, the Symphony controls the conduct of the rehearsals and performances, as well as oversees certain artistic aspects of a performance. But, practically speaking, work by creative profession independent contractors is often performed to the specifications and on the timetable of the hiring party, but that structure does not convert an independent contractor to an employee. See Creative Non-Violence v. Reid, 490 U.S. 730, 750–751 (1989) (Court found a sculptor to be an independent contractor even though the nonprofit association that hired him defined the scene to be sculpted and specified the details of the sculpture’s appearance, including its scale and the materials to be used); and Radio City Music Hall Corp. v. U.S., 135 F.2d 715, 717– 718 (2d Cir. 1943) (court found performers to be independent contractors even where the producer controlled the timing and conduct of rehearsals and directed the performers to “weld” together the performance). This is particularly true where, as here, the employer’s artistic control and direction is primarily related to the end product, i.e., the sound and look of the symphony as a whole, not the manner in which the individual musicians providing their services prepare for and perform the work…Thus, based on the above discussion of the right of control factor, I would find that the record evidence weighs in favor of finding the musicians to be independent contractors.

Mr. Hayes has clearly never worked for a conductor.

We tend to assume that the right to organize and bargain collectively is a settled matter in our business. But maybe it’s not. Hayes’ dissent (and, if you’re wondering, Hayes was appointed by a Democratic president, albeit as part of a package of three nominations) could very well have become Board doctrine if the last election had turned out differently.

Rights are only rights because people in the past, near and distant, demanded them and fought for them. That’s just as true of the right to organize as it is of the right to criticize the government, the right to own property, or the right to worship the deity of your choosing. As Frederick Douglass so memorably wrote:

Power concedes nothing without a demand. It never did and it never will.