On December 27, 2011, the NLRB issued a decision in Lancaster Symphony Orchestra, reinstating the representation petition and remanding to the Regional Director for further action. The key litigated issue was whether the orchestra's musicians were employees covered by the NLRA rather than independent contractors.

Each year, the Lancaster Symphony Orchestra (LSO) mails information to local musicians, requesting availability for performances in the coming season. Once the musicians have selected performances for which they are available, the musicians return a signed agreement for a one-year term indicating that they are independent contractors of the LSO. Among other terms, the agreement sets a fixed pay rate for rehearsals and performances. The LSO also maintains rehearsal and performance guidelines and a strict attendance policy, although the musicians are able to work for other employers throughout the season.

In 2007, a union petitioned for an NLRB representation election based on union authorization cards signed by 30% of the LSO's musicians. An NLRB regional director denied the representation petition because the musicians in the proposed bargaining unit were independent contractors, not employees. The union appealed the regional director's decision by requesting it be reviewed by the five member panel (Board) in charge of the NLRB's election process. A three-member panel of the Board reviewed the regional director's decision.

By a two to one vote (Member Hayes, dissenting) the Board majority found that the musicians were employees of the LSO. The Board focused primarily on the first factor in the common law agency test, whether the LSO has the right to control the manner and means of the performance of the job (NLRB v. United Insurance Co., 390 U.S. 254 (1968)). Specifically, the Board held that the LSO retained control over:

The Board majority also noted that the LSO maintained behavioral guidelines for rehearsals and performances and retained the right to discipline musicians for unprofessional behavior.

Finally, the Board majority found that the remaining factors, including the musicians' entrepreneurial opportunity or risk, weighed in favor of employee status or were inconclusive. The Board did not find evidence of the musicians' work outside of the symphony or opportunity to select in which, if any, LSO program they would participate indicative of an independent contractor relationship. The Board majority also dismissed the musicians' signed agreements stating the musicians were independent contractors, holding that there was disagreement among the musicians as to whether they were, in fact, independent contractors. Further, the Board majority found that musicians returned to play with the LSO year after year, even though the agreement was only for a one-year term.

Member Hayes dissented, asserting that the Board majority's analysis did not properly follow the Board's past application of the common law agency test factors. Though Hayes also relied on the right-to-control factor, he argued that the appropriate focus was whether the musicians could choose to accept or decline particular work with the LSO and other entities, rather than whether the employer controlled the artistic aspects of the performance (Lehrohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th. Cir. 2003)).

Hayes found that the musicians did retain control over the manner and means of their performance because they could:

In making these choices, Hayes concluded that the musicians also had the entrepreneurial opportunity to earn as much from the LSO as they wished, while also maximizing outside employment to earn more income throughout the year.

Though the LSO retained creative control over the performances, Hayes argued that the Board historically found that while creative work is often done according to the specifications of the hiring party, this does not shift an independent contractor to employee status. Hayes noted that this control is primarily over the end product, the performance, rather than the manner in which the work is performed.

In the remainder of his analysis, Hayes concluded that each of the common-law agency test factors weighed in favor of the musicians' independent contractor status, most notably, the musicians provided their own instruments, which were the most important and necessary performance tools.

In light of this decision, employers should beware of the current interpretation of the right to control a worker's performance of the job despite explicit signed agreements and historical Board practice to the contrary. The Board majority's opinion suggests that workers' entrepreneurial opportunities and discretion are construed narrowly and given less weight than in the past. Accordingly, this Board majority would more easily find workers to be employees covered by the NLRA rather than independent contractors than would prior Boards.

Update: On April 19, 2016, the DC Circuit denied the LSO's petition for review and granted the Board's cross-application for enforcement (Lancaster Symphony Orchestra v. NLRB, No. 14-1247, (D.C. Cir. Apr. 19, 2016)).