## Facts

- Lancaster Symphony Orchestra (LSO) engaged local musicians each concert season to rehearse and perform in a professional symphony orchestra.
- Before each season, LSO sent musicians a schedule, pay information, and an availability form; musicians indicated which programs they could play.
- Selected musicians signed a standard one-season agreement stating they were “independent contractors,” paying a fixed amount per rehearsal or concert, and providing that no taxes would be withheld.
- LSO set concert and rehearsal schedules, issued detailed rehearsal/performance rules, and enforced a strict attendance policy.
- Musicians generally had to attend all rehearsals and concerts for a given program, with limited ability to provide substitutes.
- LSO used principals/section leaders and a conductor who directed artistic aspects, including repertoire, tempos, dynamics, and interpretation.
- LSO unilaterally set compensation rates per service; musicians received no LSO benefits and were paid only for services performed.
- Musicians could and did perform for other orchestras and ensembles outside their LSO engagements.
- The union filed a representation petition; the Regional Director dismissed it on independent-contractor grounds; the NLRB granted review.

## Issues

1. Whether LSO’s performing musicians were “employees” under NLRA § 2(3) or independent contractors excluded from NLRA coverage under the common-law agency test.
2. How the orchestra’s control over rehearsals and performance, and the musicians’ entrepreneurial opportunity, should be weighed in the classification analysis.

## Decision

- The NLRB reversed the Regional Director and held the musicians were employees under NLRA § 2(3), not independent contractors.
- The Board found LSO exercised substantial control over the manner and means of the musicians’ work, including scheduling, required attendance, and artistic direction.
- The Board concluded the musicians had limited entrepreneurial opportunity because pay was fixed per service and the relationship did not operate as an independent business venture for individual musicians.
- The Board treated the “independent contractor” label and lack of tax withholding as relevant but not dispositive in light of actual working conditions.
- The Board directed that the representation proceeding continue, permitting an election among the musicians.

## Legal Principles

- Independent-contractor status under the NLRA is determined by the common-law agency test considering all incidents of the relationship, with special attention to the putative employer’s right of control.
- “Entrepreneurial opportunity” is a factor in the common-law analysis but is not controlling by itself.
- Contractual labels (e.g., “independent contractor”) and payroll/tax treatment do not determine status when inconsistent with the parties’ actual relationship.
- High skill and professional training do not preclude employee status when services are performed within another entity’s business under that entity’s direction.
- Work that is central to an organization’s core business and performed within its structured operations tends to support employee status when accompanied by substantial control.

## Conclusion

Applying the common-law agency test, the NLRB classified LSO’s seasonal orchestra musicians as NLRA employees because LSO tightly directed rehearsal and performance work, imposed attendance and scheduling requirements, and provided little room for profit or loss through independent business initiative, making the union’s representation petition eligible to proceed.


Lancaster Symphony Orchestra & Greater Lancaster Fed’n of Musicians, Loc. 294, 357 N.L.R.B. No. 152 (2011)