Why Symphonic Musicians Should Care About the NLRB

August 1, 2025

Rochelle Skolnick  -  AFM Symphonic Services Division Director

As we watch the dismantling of the US federal government by the current administration, it can be hard to know where to focus. This administration’s “flood the zone” approach has made it challenging—intentionally—to track the hundreds of changes, much less to estimate the impact of each on our individual lives.

“Attacks on the National Labor Relations Board (NLRB) are particularly disruptive to our ability to effectively represent symphonic musicians. But unless you happen to be a labor law and policy wonk, you may not be able to articulate exactly why and how undermining the NLRB is so damaging.
So what, exactly, do we lose when the NLRB is nonfunctional or hostile to the rights of workers?”

Attacks on the National Labor Relations Board (NLRB) are particularly disruptive to our ability to effectively represent symphonic musicians in the US. But unless you happen to be a labor law and policy wonk, you may not be able to articulate exactly why and how undermining the NLRB is so damaging. So what, exactly, do we lose when the NLRB is nonfunctional or hostile to the rights of workers?
The NLRB is the federal government agency responsible for enforcing the National Labor Relations Act (NLRA), the federal law that protects American employees’ right to organize and bargain collectively with their employer. Although violations of our collective bargaining agreements can be resolved through contractual grievance and arbitration procedures, in the US we rely on the NLRB for resolution and remedy when employer conduct violates the NLRA, or for disputes that arise when a collective bargaining agreement (CBA) is not in effect.

Filing an unfair labor practice (ULP) charge with the region of the NLRB that has jurisdiction where the ULP occurred is a straightforward process and one accessible to unions and employees, even without the assistance of an attorney. Ordinarily, the regions are quick to investigate charges. After investigation, the region determines the merits of the charge, and if the charge is meritorious, issues a complaint that leads to a trial before an administrative law judge (ALJ) of the NLRB. If one or more of the parties is dissatisfied with an ALJ’s decision, the case may be appealed to the five-member NLRB in Washington, DC.

In a move the legality of which will be ultimately decided by the Supreme Court, the current administration removed NLRB Member Gwynne Wilcox (the first Black woman to be appointed to the NLRB), leaving the NLRB without a quorum. In ordinary times, the composition of the NLRB shifts with the party in control of the White House, but Wilcox’s removal prior to the expiration of her fixed term was an unprecedented act.

The regions of the NLRB remain functional (albeit severely understaffed, like so many federal agencies); they continue to investigate cases, issue complaints, and hold elections. ALJs can hear cases and issue decisions. But without a quorum, the NLRB cannot decide cases. This means that anything not fully resolved at lower levels is left in limbo, unless and until there is once again a quorum at the board.

On July 17, the administration finally announced the nominations of Scott Mayer and James Murphy to the NLRB. Assuming they are confirmed, a quorum will eventually be restored to the NLRB, albeit with a majority of members presumed to be more favorable to the interests of employers than employees. This raises another set of problems.

Historically, a number of significant disputes involving symphonic musicians have been resolved through NLRB processes. For example, in 2011, the NLRB issued a decision confirming that The Cleveland Orchestra was obligated to bargain with both Local 4 (Cleveland, OH)—concerning the terms and conditions of employment for the musicians relating to live, local work—and with the AFM—concerning the production and use of electronic media. In doing so, the NLRB confirmed the enforceability of the jurisdictional boundaries set by AFM Bylaws. These boundaries allow the AFM, and not the locals, to set terms and conditions for electronic media work performed by symphonic musicians and thereby maintain consistent standards throughout the Federation for work that truly knows no geographical boundaries.

In a case that arose in 2017 involving the musicians of the then-San Antonio Symphony, the NLRB found in 2022 (after a complicated procedural history) that the Tobin Center for the Performing Arts did not have the right to prohibit musicians from accessing a sidewalk on Tobin Center property to engage in informational leafleting to the general public about Ballet San Antonio’s use of recorded music for a production of Sleeping Beauty.

The symphony leased the Tobin Center for rehearsals and performances and the musicians were off duty when they engaged in leafletting concerning the ballet, which was another tenant of the center. This case had ramifications not only for the many orchestra musicians who perform for their employers in rented concert halls, but also for thousands of workers whose employers provide subcontracted services on premises not owned by the employer (for example, employees of third-party cleaning companies that provide services to office buildings and other facilities).

Musicians also turn to the NLRB when they are seeking to form new bargaining units and to be represented by the union for the first time. The regional offices of the NLRB process representation petitions and hold elections through which employees designate a union as their collective bargaining representative. Although the symphonic sector is already among the most highly organized in the US, there are still musicians working in orchestras that do not yet have CBAs and who want to join together to change that. In recent years, regions of the NLRB have processed petitions that led to the musicians of the Colorado Music Festival, Eastern Music Festival, Opera Idaho, Rogue Valley Symphony, and—most recently—Vista Philharmonic Orchestra gaining the right to collectively bargain with the assistance of AFM locals.

One foundational case for recent organizing work in the symphonic sector involved the Lancaster Symphony Orchestra. There, the musicians organized and sought to be represented by Local 294 (Lancaster, PA) in 2007. The employer fought the election, claiming the musicians were not employees but independent contractors, and therefore outside the scope of the NLRA’s protection for organizing. The regional director who processed the petition agreed with the employer, but the AFM appealed to the NLRB in Washington.

The NLRB reversed the Regional Director’s finding on the basis of a multi-factor test that there was an employer-employee relationship between the symphony and the musicians. The employer later appealed to the US Court of Appeals for the DC Circuit. That court agreed with the NLRB that the musicians were employees, finding (among other things) that the employer “regulates virtually all aspects of the musicians’ performance” and that the “conductor exercises virtually dictatorial authority over the manner in which the musicians play.” Employee status is the key that unlocks a worker’s access to the full protections of the NLRA and this case set an important precedent.

NLRB processes are also the vehicle by which many orchestra librarians have been added to existing bargaining units of musicians. When an orchestra employer refuses to voluntarily recognize and bargain with a local on behalf of one or more librarians, the local files for what is referred to as an Armour-Globe election (named for the NLRB case that established this type of election). This process has been used successfully again and again by librarians to attain the protections of a CBA and a voice in their workplaces, most recently those of the St. Louis Symphony Orchestra.

Employee status for musicians and the right to organize and collectively bargain, the obligation of symphonic employers to deal with the AFM with regard to terms and conditions for electronic media work, the right of musicians whose employer leases a concert hall to leaflet in proximity to that facility, and the propriety of including librarians in musician bargaining units are important legal rights for musicians. Without a functioning NLRB, these victories would have been impossible. Although we forge ahead, organizing new bargaining units and challenging the bad acts of employers at the regions of the NLRB, we rely on the NLRB itself to obtain full remedy or recourse. If the NLRB is nonfunctional or hostile to the rights of workers, as it was in the first Trump administration, our ability to protect musicians in the US is compromised.

---