Lancaster Symphony Orchestra v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 8, 2016 Decided April 19, 2016

No. 14-1247

LANCASTER SYMPHONY ORCHESTRA,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

THE GREATER LANCASTER FEDERATION OF MUSICIANS,
LOCAL 294, AMERICAN FEDERATION OF MUSICIANS,
INTERVENOR

Consolidated with 14-1272

On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board

Jill S. Welch argued the cause and filed the briefs for
petitioner.

Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
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Deputy Associate General Counsel, and Usha Dheenan,
Supervisory Attorney.

Jeffrey R. Freund and Patricia Polach were on the brief
for intervenor in support of respondent.

Before: TATEL and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: The National Labor Relations Act
guarantees employees, but not independent contractors, the
right to join a union. In this case, the National Labor
Relations Board ruled that musicians in the Lancaster,
Pennsylvania, regional orchestra are employees and thus
entitled to join a union. Arguing that its musicians are in fact
independent contractors, the Orchestra petitions for review.
For the reasons set forth below, we deny the petition and grant
the Board’s cross-application for enforcement.

I.
Every year the Lancaster, Pennsylvania, Symphony
Orchestra offers a series of classical music programs, each
made up of four or so concerts. Before the beginning of each
season, the Orchestra sends information packets to musicians
inviting their participation. The packets list the program and
rehearsal schedules for the coming year and announce the rate
of pay for participating musicians. The packets also describe
the Orchestra’s policies on a variety of issues, including
attendance, seating, and availability of sheet music.

Musicians who wish to perform select one or more
programs and sign a Musician Agreement Form. That form,
which covers a single season, states that musicians will work
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as independent contractors, that they will be paid for each
rehearsal or concert they attend, and that they will have no
taxes withheld from their pay. Participating musicians must
conform to the Orchestra’s etiquette standards for both
rehearsals and concerts. During rehearsals, musicians must
maintain good playing posture and confine conversation to
topics concerning the rehearsal. They must not cross their
legs, talk, or practice while the conductor is on the podium, or
interfere with the concentration of other musicians. The list of
rules for concerts is far longer: musicians must warm up
quietly, remain silent after the concertmaster signals for
tuning, maintain good posture and attentive appearance
throughout the performance, refrain from crossing their legs,
remain still until the conductor lowers his hands, and when
the conductor signals for the orchestra to acknowledge
applause, stand, face the audience, and smile. Musicians must
also abide by the Orchestra dress code: white tie for men and
black formal wear for women. Musicians may attend
meetings of the orchestra committee, which includes board
members and the CEO, and which addresses issues such as
dress, lighting, and attendance.

Seeking to represent the Orchestra’s musicians, the
Greater Lancaster Federation of Musicians, Local 294 filed a
petition for certification pursuant to NLRA section 9(c). See
29 U.S.C. § 159(c). The Orchestra challenged the petition,
arguing that its musicians were independent contractors and
so had no right to join a union. See NLRB v. United Insurance
Co. of America, 390 U.S. 254, 255 (1968) (explaining that
“‘employees’ . . . are protected by the [Act, but] ‘independent
contractors’ . . . are expressly exempted”); see also 29 U.S.C.
§ 152(3) (“The term ‘employee’ . . . shall not include . . . any
individual having the status of an independent contractor.”).
Following a hearing at which both the Orchestra’s CEO and
principal trombonist testified, the Regional Director
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concluded that the musicians were independent contractors
and dismissed the petition. The Board disagreed. Emphasizing
the Orchestra’s substantial “control” over the musicians and
their limited “entrepreneurial opportunity,” as well as that the
musicians’ work “is part of the Orchestra’s regular business,”
the Board concluded that they qualify as employees.
Lancaster Symphony Orchestra, 357 N.L.R.B. No. 152
(2011). The Board then conducted an election, which the
Union won. After jumping through a few procedural hoops
not relevant to the issue before us, the Orchestra petitioned for
review. The Board cross-applied for enforcement, and the
Union intervened in support of the Board.

II.
We begin with the decidedly unharmonious standards
that determine the outcome of this case. “Although the Board
must decide in the first instance whether individuals claiming
the protection of the [Act] are employees or independent
contractors, the Act requires the Board to resolve that
question by reference to the common law of agency.” C.C.
Eastern, Inc. v. NLRB, 60 F.3d 855, 858 (D.C. Cir. 1995)
(citing United Insurance, 390 U.S. at 256). In conducting that
inquiry, the Board, like this court, considers the factors set
forth in section 220(2) of the Restatement (Second) of
Agency. FedEx Home Delivery v. NLRB, 563 F.3d 492, 496
& n.1 (D.C. Cir. 2009). That section lists ten factors:

(1) “the extent of control” the employer has over the
work;
(2) whether the worker “is engaged in a distinct
occupation or business”;
(3) whether the “kind of occupation” is “usually
done under the direction of the employer or by a
specialist without supervision”;
(4) the “skill required in the particular occupation”;
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(5) whether the employer or worker “supplies the
instrumentalities, tools, and the place of work for the
person doing the work”;
(6) the “length of time for which the person is
employed”;
(7) whether the employer pays “by the time or by the
job”;
(8) whether the worker’s “work is a part of the
regular business of the employer”;
(9) whether the employer and worker “believe
they are creating” an employer-employee
relationship; and
(10) whether the employer “is or is not in business.”

Restatement (Second) of Agency § 220(2). In addition to
these factors, the Board, also like this court, looks to see
whether the workers have a “significant entrepreneurial
opportunity for gain or loss.” Corporate Express Delivery
Systems v. NLRB, 292 F.3d 777, 780 (D.C. Cir. 2002)
(internal quotation marks omitted).

Because applying “the law of agency to established and
undisputed findings of fact ‘involve[s] no special
administrative expertise that a court does not possess,’” C.C.
Eastern, Inc., 60 F.3d at 858 (alteration in original) (quoting
United Insurance, 390 U.S. at 260), we “need not accord the
Board’s decision that special credence which we normally
show merely because it represents the agency’s considered
judgment,” id. (internal quotation marks omitted). That said,
because “[d]rawing the distinction requires an exercise of
judgment about . . . facts,” Corporate Express Delivery
Systems, 292 F.3d at 779—to which we would ordinarily
defer, see International Longshoremen’s & Warehousemen’s
Union, Local 62-B v. NLRB, 781 F.2d 919, 923 (D.C. Cir.
1986) (“[W]e must defer to the Board’s conclusion” “[t]o the
 6
extent that the Board decisions reflect conclusions as to
factual matters,” provided they are supported by substantial
evidence.)—we do not “review the Board’s determination de
novo,” C.C. Eastern, Inc., 60 F.3d at 858. Instead, we take a
“middle course,” Corporate Express Delivery Systems, 292
F.3d at 779, and “will . . . uphold the Board if at least it can be
said to have made a choice between two fairly conflicting
views,” FedEx Home Delivery, 563 F.3d at 496 (internal
quotation marks omitted).

With these standards in mind, we begin with the
Restatement factors and consider how they apply to the facts
of this case. In our view, some point toward employee status,
some toward independent contractor status, and one in no
clear direction at all. We consider each category in turn.

The first factor supporting employee status—“the extent
of control” the Orchestra exercises over the musicians,
Restatement factor one—requires that we examine “the extent
of the actual supervision exercised by a putative employer
over the means and manner of the workers’ performance.”
C.C. Eastern, Inc., 60 F.3d at 858 (internal quotation marks
and emphasis omitted). In this case, record evidence
demonstrates that the Lancaster Orchestra regulates virtually
all aspects of the musicians’ performance. It controls their
posture, including prohibiting them from crossing their legs,
and requires them to remain attentive throughout the
performance. Musicians must confine conversations during
rehearsals to matters concerning the rehearsal, and they may
not talk at all during tuning or when the conductor is on the
podium. Musicians must warm up quietly and never interfere
with the concentration of others. And when the conductor
signals for the orchestra to acknowledge applause, the
musicians must stand immediately, turn to face the audience,
and smile. The Orchestra, moreover, enforces these rules. For
 7
example, one musician was reprimanded after she left her seat
during a rehearsal in order to talk to a colleague.

Even more significant, the Lancaster Orchestra’s
conductor exercises virtually dictatorial authority over the
manner in which the musicians play. The principal trombonist
testified that the conductor determines when musicians come
in, as well as their volume and pitch. Asked whether
musicians could “use [their] independent discretion to play
louder, if [they thought] it sound[ed] better,” the trombonist
responded “[o]nly initially” but “[n]ot after” the conductor
directs otherwise. Hr’g Tr. 117. The conductor may also
“explain the technique that he wants [musicians] to use, which
may be specific to [a certain] instrument, a particular bow
technique or a vibrato technique.” Id. at 121.

Illustrating the extent of the conductor’s control, the
principal trombonist testified that the conductor’s role is not
simply to keep time while the musicians follow the music but
rather to mold the performance into the conductor’s personal
interpretation of the score. During rehearsals, the conductor
will “work[] all . . . artistic issues out the way he thinks that
he has conceived, mentally conceived the music should
sound.” Id. at 118. What the conductor “mentally visualizes
and hears is not necessarily what’s on the page.” Id. Leon
Botstein, principal conductor of the American Symphony
Orchestra, once put it this way:

I think there’s a big misunderstanding. Some people
think, well, the composer wrote the music. Well,
that’s true. And there’s a score. But depending when
the score was written, the number of indications of
what to do are very few. . . . The score is a map. It
doesn’t tell you how to drive . . . . It doesn’t tell you
how to make the trip. It only tells you where you’re
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going. So the score is a minimum number of
instructions. . . . [T]his hype about doing only what
the composer intended is a nonsense because nobody
knows what the composer intended. . . . [P]utting a
piece of music on the stage is always about [the]
intention of the interpreter.

Leon Botstein, The Art of Conducting Music, Bigthink (May
10, 2010), http://bigthink.com/videos/the-art-of-conducting
-music. Making this same point, Pulitzer Prize-winning music
critic Tim Page observed that “Arturo Toscanini used to bring
in Wagner’s ‘Siegfried Idyll’ at about 15 minutes, while
Glenn Gould . . . made a recording of the same piece that lasts
25 minutes . . . .” Tim Page, I Hear a Symphony!, Pulitzer,
http://www.pulitzer.org/winners/6831 (last visited Apr. 19,
2016). And Maestro Lorin Maazel, former conductor of the
New York Philharmonic, explained that the conductor plays
this interpretive role even when performing his own music:

If I am conducting my own music it’s rather
embarrassing to admit that I couldn’t write
everything into the score—no-one can of course—
because every time I finish a score I think there’s
nothing more to do: all we have to do is play it the
way it is written, which of course is nonsense, and by
the second bar you already realise that there is a need
for an interpreter.

Colin Anderson, An Interview with Lorin Maazel—
Conducting, Composing . . . Casablanca!, Classical Source,
http://www.classicalsource.com/db_control/db_features.php
?id=6170 (last visited Apr. 19, 2016).

Given the foregoing, we think it quite clear that the
Lancaster Orchestra closely supervises “the means and
manner of [the musicians’] performance.” C.C. Eastern, Inc.,
 9
60 F.3d at 858 (internal quotation marks omitted). Indeed, the
circumstances here are quite similar to those we faced in
Seattle Opera v. NLRB, in which a group of backup
choristers, called auxiliaries, who occasionally filled open
roles in the Opera’s five seasonal programs, sought to join a
union. 292 F.3d 757, 760 (D.C. Cir. 2002). Like the musicians
here, auxiliaries were required to “adhere to . . . attendance
and decorum requirements[,] . . . receive artistic feedback[,]
. . . follow musical and dramatic direction,” and wear
particular attire, in their case “costume fittings and make-up.”
Id. at 765. Given that “the Opera possesse[d] the right to
control [auxiliaries] in the material details of their
performance,” we concluded, as had the Board, that they were
employees. Id.

The Orchestra nonetheless insists that its musicians
actually exercise a great deal of control over their
performances, emphasizing that musicians practice before
rehearsals, that principal musicians instruct members of their
section, and that musicians may participate in the orchestra
committee. We agree with the Board, however, that none of
this “defeat[s] the Board’s finding that the [Orchestra] is the
ultimate authority to whom all the musicians must defer.”
Resp’t’s Br. 29. Musicians certainly practice on their own, but
it is the conductor who directs how they perform. The
principal trombonist testified that he gives instructions to the
other trombone players only “if it’s at the direction of
something that the conductor has asked [the trombones] to
work on.” Hr’g Tr. 127. Finally, although musicians may
participate in committee meetings, it is the Orchestra that
establishes etiquette standards and the conductor who controls
rehearsals and performances.

Two other Restatement factors also suggest that the
Lancaster Orchestra’s musicians qualify as employees. Their
 10
work “is a part of the regular business of the employer,”
Restatement factor eight, because, as the Board explained, the
musicians “are in the business of performing music, and thus
their work is part of the employer’s regular business.”
Lancaster Symphony Orchestra, 357 N.L.R.B. No. 152.
Restatement factor seven—“method of payment”—is more
complicated. To be sure, the Musician Agreement provides
that musicians are paid by the job, which suggests that they
function as independent contractors. Restatement (Second) of
Agency § 220(2) cmt. j (Independent contractor status is more
likely “if payment is to be made by the job and not by the
hour.”). As the Board pointed out, however, musicians are in
effect paid by the hour because they receive additional pay for
each fifteen minutes that a rehearsal or concert exceeds two
and a half hours. Lancaster Symphony Orchestra, 357
N.L.R.B. No. 152 (“[M]usicians are not paid for the job . . . .
Rather, they are paid based on the time they spend working
for the Orchestra.”).

Pointing in the opposite direction, three Restatement
factors suggest independent contractor status. First, the
occupation of musician clearly requires a high degree of skill.
Restatement factor four; cf. Restatement (Second) of Agency
§ 220(2) cmt. h (“[W]ork which does not require the services
of one highly educated or skilled” suggests an employer-
employee relationship.). Second, the Orchestra engages
musicians for only a short amount of time. Restatement factor
six. The Musician Agreement covers one calendar year, and,
within that year, many musicians choose to perform in only a
few programs. Even those musicians who participate in all
programs work just 140 to 150 hours a year for the Orchestra.
Under the Restatement, “[i]f the time of employment is
short,” it suggests an employer-contractor relationship.
Restatement (Second) of Agency § 220(2) cmt. j. Third, the
Musician Agreement states that musicians work as
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independent contractors and that the Orchestra will not
withhold taxes, suggesting that both parties “believe” that the
Orchestra’s musicians are independent contractors.
Restatement factor nine; see also FedEx Home Delivery, 563
F.3d at 498 n.4 (absence of withholding suggests “party
intent” to form independent contractor relationship).

One Restatement factor points in no clear direction.
Factor five considers who provides the worker’s
“instrumentalities, tools, and . . . place of work.” If “a worker
supplies his own tools,” it offers “some evidence” of
independent contractor status. Restatement (Second) of
Agency § 220(2) cmt. k. Here, musicians provide the most
critical tools, their instruments, thus suggesting contractor
status. That said, as the Board explained, “the Orchestra
supplies music, stands, chairs, and the concert hall,”
suggesting employee status. Lancaster Symphony Orchestra,
357 N.L.R.B. No. 152.

This brings us then to the extent of the worker’s
“entrepreneurial opportunit[ies],” Corporate Express Delivery
Systems, 292 F.3d at 780 (internal quotation marks omitted), a
factor which does not appear in the Restatement but which the
Board and this court use in assessing whether workers are
employees or independent contractors. The Board has
explained the factor this way: “In addition to the factors set
forth in Restatement § 220, the Board has considered, as one
factor among the others, whether putative contractors have
significant entrepreneurial opportunity for gain or loss.
Related to this question, the Board has assessed whether
purported contractors have the ability to work for other
companies, can hire their own employees, and have a
proprietary interest in their work.” FedEx Home Delivery, 361
N.L.R.B. No. 55 (2014) (internal quotation marks and
footnotes omitted). We too have considered “whether the
 12
position presents the opportunities and risks inherent in
entrepreneurialism.” FedEx Home Delivery, 563 F.3d at 497.
When examining entrepreneurial opportunities, we, like the
Board, consider the opportunities created by the position to
“take[] economic risk and ha[ve] the corresponding
opportunity to profit from working smarter, not just harder.”
Corporate Express Delivery Systems, 292 F.3d at 780.

In considering what counts as entrepreneurial
opportunity, we are guided by our decisions in Corporate
Express, id., and FedEx, 563 F.3d 492. In Corporate Express,
we held that truck drivers who owned their own vehicles were
employees because they “were not permitted to employ others
to do the Company’s work or to use their own vehicles for
other jobs.” 292 F.3d at 780 (citation omitted). In FedEx, by
contrast, we held that drivers who owned their own vehicles
qualified as independent contractors. 563 F.3d at 495. After
pointing out that several Restatement factors indicated that the
drivers were independent contractors, such as that FedEx did
not control when the drivers worked, for how long, or when
they could take breaks, we emphasized that the record
revealed “many of the . . . characteristics of entrepreneurial
potential.” Id. at 498. Specifically, FedEx permitted the
drivers to contract with the company to serve multiple routes,
to hire their own employees and replacement drivers, to
assign their employment obligations without company
permission, and to use their vehicles for other jobs. Id. at 498–
500.

Unlike in FedEx—but as in Corporate Express—the
record here reveals few “characteristics of entrepreneurial
potential.” The Orchestra’s musicians cannot contract to fill
multiple chairs, nor can they “assign or sell their place in the
symphony, or hire someone to fill their seat at any given
rehearsal or performance.” Resp’t’s Br. 33. Although the
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Orchestra expects musicians who cancel at the last minute to
help find a replacement, nothing in the record suggests they
can profit from this process, say by hiring a replacement for
less than the Orchestra pays them and pocketing the
difference.

To be sure, the musicians do enjoy an entrepreneurial
opportunity. As the Orchestra emphasizes, and as the
principal trombonist acknowledged, musicians are “free to
decline [performances with the Orchestra] and to perform
with other symphonies in the area, and free to pursue other
musical endeavors such as teaching.” Pet’r’s Br. 7; Hr’g Tr.
130–31. Musicians may even “back out of a series . . . and opt
for a higher paying ‘gig’ with another symphony.” Pet’r’s Br.
27. Allowing musicians to take advantage of other
opportunities, the Orchestra CEO testified, is “part of our
dynamic . . . particularly if they get work that would pay
more.” Hr’g Tr. 33.

This limited entrepreneurial opportunity, however,
provides only miniscule support for independent contractor
status. Unlike FedEx drivers, the Orchestra’s musicians—
even with their ability to back out of a concert in order to take
advantage of a more profitable gig—can increase their income
only by accepting jobs with other employers. Were this quite
minor entrepreneurial opportunity given much weight, it
might lead to almost automatic classification of many part-
time workers as contractors. Yet as the Board explained,
“[p]art-time and casual employees covered by the Act often
work for more than one employer.” Lancaster Symphony
Orchestra, 357 N.L.R.B. No. 152.

Summing up, then, we believe that the relevant factors
point in different directions. On the one hand, the Orchestra’s
extensive control over the means and manner of musicians’
 14
performance, the fact that musicians’ work forms part of the
Orchestra’s regular business, the hourly pay, and the limited
opportunities for entrepreneurial gain suggest, as the Board
found, that the Orchestra’s musicians qualify as employees.
Id. On the other hand, the musicians’ high degree of skill, the
limited amount of time they work for the Orchestra, and the
parties’ beliefs regarding the nature of the relationship
indicate that the Orchestra’s musicians are independent
contractors. Because the circumstances of this case thus
present a choice between “two fairly conflicting views,” we
must defer to the Board’s conclusion that the Orchestra’s
musicians are employees. FedEx Home Delivery, 563 F.3d at
496 (internal quotation marks omitted) (“[W]e will . . . uphold
the Board if at least it can be said to have made a choice
between two fairly conflicting views.” (internal quotation
marks omitted)).

Finally, the result we reach here does not conflict with
the Eighth Circuit’s decision in Lerohl v. Friends of
Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003). Although
the court there held that musicians who played for a
symphony orchestra on a temporary basis were independent
contractors, id. at 493, that case arose in a very different
situation than the one we face here. The musicians there
claimed the orchestra had fired them in violation of two civil
rights statutes—the Americans with Disabilities Act and Title
VII of the Civil Rights Act of 1964—whose applicability
turned on whether the musicians were employees. Id. at 489.
Because the district court resolved that question at summary
judgment, the Eighth Circuit’s review of the
employee/independent contractor issue was de novo. Id. at
487–88. Here, by contrast, we decide not how we would
classify the musicians in the first instance, but only whether
the Board confronted two fairly conflicting views. Because it
did, our case law requires that we defer to the Board.
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III.
For the foregoing reasons, we deny the Orchestra’s
petition for review and grant the Board’s cross-application for
enforcement.

So ordered.