Strike up the Band- More NLRB Madness!

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Under the Obama administration, the National Labor Relations Board has been running amok, wreaking havoc and leaving a general uncertainty in businesses and employers across the country. In a decision from the beginning of the year, the NLRB has proven they’re not yet through making arbitrary anti-business decisions- and that no company or employer is safe. This time, they’re going after the Lancaster Symphony Orchestra.

On December 27, 2011- just two days after Christmas- the NLRB issued a decision declaring that musicians performing in an orchestra were employees, not independent contractors. This qualifies them to form a union, exact demands out of their “employer,” and claim more costly benefits than they could as independent contractors.

The musicians performing in the orchestra have a wide level of discretion to decide for how many performances they wish to participate. They practice on their own time, and with the exception of pianists they provide and maintain their own equipment (instruments.) The agreement that the musicians sign with the orchestra states that the musicians are independent contractors. The musicians are paid on a per performance and practice basis. But that wasn’t enough for the board.

The Board made their decision noting the following ridiculous factors:

  • Musicians must be in their chairs at the appointed time that practices begin;
  • Musicians are required to remain at the practice until it is over;
  • The conductor determines how loud certain instruments are to be played;
  • The conductor determines when certain instruments are to “come in” during a performance;
  • The musicians are not allowed to cross their legs;
  • The musicians are required to turn the pages of their music as quietly as possible;
  • The musicians must adhere to a dress code; and
  • The musicians, in the Board’s opinion, are not taking any economic risk and thus are not entrepreneurs.

While most people would consider these factors a regular part of being in an orchestra, the Board judged these factors as proof that the orchestra is actually made of employees, not independent contractors.

Member Hayes dissented from the decision and stated among other things that the musicians do in fact exercise an “entrepreneurial opportunity for gain” because they have the “freedom to take as many or as few jobs” as they wish. Hayes also pointed out that “without the musical instrument, there could be no music” and as such the provision of the other necessary parts of a performance, e.g., chairs, music stands, etc. should not be considered in the same category as the instruments. As such he would have given greater weight to the provision of the instruments by the musicians and less weight to the provision of other incidental items by the orchestra.

Unfortunately, Hayes’ voice is all too often drowned out by the other political appointees on the Board. Their continued bias against businesses and employers has created a pattern that creates uncertainty in an already unstable economy.

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