Symphony to fight union ruling - LancasterOnline: Business

Symphony to fight union ruling

The symphony will raise anew the underlying issue: are musicians employees or independent contractors?

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Posted: Thursday, April 19, 2012 12:50 am | Updated: 7:42 pm, Thu Sep 12, 2013.

The Lancaster Symphony Orchestra will challenge a National Labor Relations Board ruling that allowed its musicians to unionize.

The symphony will take the matter to either the 3rd U.S. Circuit Court of Appeals or the Federal Circuit Court of Appeals, officials said Wednesday.

"We feel strongly about our position and we're moving forward with our appeal," said Scott Robinson, the symphony's president and chief executive officer.

Depending on the court's finding, the symphony action could overturn last month's apparent victory by pro-union musicians, which capped a five-year effort.

But it will be at least a year until the symphony and its musicians learn whether the pro-union vote sticks.

"It saddens us deeply that they're not willing to negotiate," said John Hess, secretary-treasurer of Local 294 of the American Federation of Musicians.

The key issue in the unionizing battle remains whether the musicians are employees or independent contractors.

Under federal law, only employees may unionize.

The union effort began in early 2007. The symphony opposed it, arguing that the musicians were independent contractors and therefore ineligible to unionize.

The NLRB's regional director in Philadelphia agreed with the symphony in July 2007. Local 294 quickly appealed the decision to the NLRB in Washington.

After more than four years, the NLRB voted 2-1 in December that the musicians were employees. That allowed the musicians to vote on whether to unionize.

In March, it was announced that the pro-union side had won by a 50-34 margin.

That vote was expected to lead to the start of negotiations on a labor contract, the first in the symphony's 65-year history.

Instead, Local 294 received a letter Wednesday from the symphony saying it refuses to bargain.

Assuming that Local 294 gets the NLRB to find the symphony committed an unfair labor practice, the symphony will appeal that finding to court.

There, the symphony will raise anew the underlying issue - are the musicians employees or contractors?

Symphony attorney Dave Keller said it's likely that the symphony will be able to file its appeal by year-end, leading to a likely court ruling in 2013.

Keller explained that the symphony could go before the 3rd Circuit, based in Philadelphia, whose territory includes Lancaster, or the Federal Circuit, based in Washington, which hears appeals of decisions by federal agencies including the NLRB.

Robinson reiterated the symphony's position that the musicians are independent contractors because they retain "extensive control over their own schedules and ultimately over their own earnings."

The musicians also provide, maintain and insure their instruments, provide their own attire and perform with other orchestras and ensembles, he noted.

"In our 65 years, we've always treated the musicians as independent contractors," added Robinson.

That was the conclusion of the NLRB's Philadelphia regional director, who emphasized that musicians choose how many concerts to play a season at a time.

But in December, the NLRB found they were employees because the symphony "possesses the right to control the manner and means by which the performances are accomplished."

The symphony picks the music, chooses how and when it will be played, schedules rehearsals, sets non-negotiable pay rates, sets guidelines for dress and imposes discipline, it noted.

Hess, of Local 294, said he was "really disappointed" by the symphony action, saying that the musicians' top priority is to formalize work rules and procedures, not make more money.

"The negotiations were not going to be hard. It's not rocket science. It's just trying to get a few things down on paper. We're not asking for the world," Hess said.

"I can't understand why they're so afraid of going through with this. Every other regional orchestra in this area - Harrisburg, Reading, Allentown, Wilmington - has a (labor agreement)," he said. "It's a good thing."

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