822 F.3d 563
D.C. Cir.2016Background
- Lancaster Symphony Orchestra recruits musicians seasonally via Musician Agreement Forms stating they are "independent contractors," paid per rehearsal/concert with no tax withholding.
- Orchestra prescribes detailed rehearsal/concert rules (posture, silence, dress code) and enforces them; the conductor controls artistic decisions (timing, dynamics, technique).
- Musicians may select which programs to join, can perform elsewhere, and work limited hours (often 140–150 hours/year); they supply their own instruments.
- The Union petitioned for certification under the NLRA; the Regional Director found musicians were independent contractors, but the NLRB reversed, concluded they were employees, and ordered an election the Union won.
- The Orchestra petitioned for review; the D.C. Circuit reviewed whether the Board’s employee determination was supported by substantial evidence and consistent with the common-law agency factors and entrepreneurial-opportunity test.
Issues
| Issue | Orchestra's Argument | Union/Board's Argument | Held |
|---|---|---|---|
| Whether the musicians are "employees" under the NLRA (common-law agency factors + entrepreneurial opportunity) | Musicians are independent contractors: agreements state contractor status and no withholding; musicians are highly skilled, work limited hours, supply instruments, and can accept other gigs. | Musicians are employees: Orchestra controls the means and manner of performance (strict rehearsal/concert rules and conductor direction); work is part of the Orchestra’s regular business; pay is effectively hourly; limited entrepreneurial opportunity. | Court upheld the NLRB: conflicting factors exist, but deference to the Board was appropriate; the musicians are employees under the Act. |
Key Cases Cited
- NLRB v. United Ins. Co. of Am., 390 U.S. 254 (establishes NLRA’s requirement to apply common-law agency test)
- C.C. Eastern, Inc. v. NLRB, 60 F.3d 855 (D.C. Cir. 1995) (discusses application of Restatement factors and judicial review scope)
- FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009) (use of Restatement factors plus entrepreneurial-opportunity analysis)
- Corporate Express Delivery Sys. v. NLRB, 292 F.3d 777 (D.C. Cir. 2002) (entrepreneurial opportunity analysis of drivers)
- Seattle Opera v. NLRB, 292 F.3d 757 (D.C. Cir. 2002) (similar facts where artistic control supported employee status)
- Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003) (distinguished; different procedural posture and facts)