Navigating the recent National Symphony Orchestra strike: unions, compensation, and employee status
Written by Tara Wasik
Labor movements have a deep history at the heart of our nation’s capital.
For the first time in over 40 years, the National Symphony Orchestra (NSO) went on strike on Sept. 27, 2024, following a unanimous decision of authorization by a statement from the D.C. Federation of Musicians, Local 161-710 on Sept. 23.
The NSO has been negotiating for a new collective bargaining agreement since May, with the previous agreement having expired in early Sept. of this year. The statement claims that base wages for NSO musicians declined by approximately 15% when adjusted for inflation since their last collective bargaining agreement over 5 years ago.
Authorizing a strike and launching a strike are separate actions. On Sept. 24, hours before the first of three concerts featuring singer Sara Bareilles was set to start, the musicians threatened to strike. Just one hour before the show, a three-day extension in discussions was arranged, narrowly avoiding the concert’s cancellation. On Sept. 27, after the three-day period, a brief strike was finally initiated.
The American Federation of Musicians, Local 161-710 ended the strike in less than 24 hours, in contrast to the last time the NSO went on strike for five weeks in 1978.
Striking for musical ensembles, like orchestras, is tenuously organized and more complicated compared to other occupations. The interlocking factors of finances, public opinion, and the NSO’s unique relationship with the Kennedy Center makes this strike exceptionally thought-provoking.
Generally, workers strike due to suppressed wages. Following this trend, financial tensions are almost always the cause of strikes in musical ensembles. NSO musicians had initially rejected an offer of a 13% raise over four years. The new contract breaks down the total raises year by year.
In year one, the 2024-2025 season, wages will increase by 4% and an additional 4% in year two, which would be the 2025-2026 season. More negotiations would commence in early 2026 regarding a possible renewal, extension or any further action. Supplementary healthcare packages were also among offered benefits.
The classification of an orchestra member’s work status has been solidly defined within the past 10 years after decades of imprecise and nebulous definitions.
In 2007, the Lancaster Symphony Orchestra (LSO), based in Lancaster, Pennsylvania, categorized their musicians as independent contractors. This excluded the Greater Lancaster Federation of Musicians, Local 294 from representing a unit of employees under the 1935 National Labor Relations Act (NLRA). Dorothy L. Moore-Duncan, the regional director of the National Labor Relations Board overseeing the Lancaster area, dismissed a petition from Local 294 requesting to organize. Moore-Duncan concluded that the musicians’ work conduct and descriptions favored independent contractor status over employee status.
Moore-Duncan reasoned that the musicians were not required to play in every series based on their availability. Thus, they essentially controlled their earnings regarding how much they wished to perform. In the season prior to the release of Moore-Duncan’s decision and order, fewer than 10 musicians played in every program. Additionally, none of the musicians worked exclusively for the LSO. The musicians were paid per service instead of on an hourly or salaried regime. Finally, the LSO did not supply tools for work, since it is common practice for professional musicians to provide their own equipment, nor did they receive training from their employer as once again it is expected the musician’s do this themselves.
The paramount point of contention references the Musician Agreement Form, a mandatory contract specific to the LSO acknowledging a musician’s status as an independent contractor through a one year term from July 1 to June 30. LSO Trombonist Ricky Staherski testified that he considered himself an employee despite signing this contract multiple times.
On behalf of Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the LSO musicians union filed a request for review of Moore-Duncan's decision. In 2011, the NLRB reversed her decision and sent the case back to the region.
In unpublished decisions issued a day later, the NLRB also agreed in unrelated cases involving other orchestras, that the musicians performing for the Cape Cod Symphony Orchestra in Massachusetts and the Plano Symphony Orchestra in Texas are employees, not independent contractors.
The rationale for this argument was based on an orchestra management’s control over work hours once a musician decides to play for a program, payment schedules, dress codes, standards for behavior and more. All of these factors fell under the definition of employee status, particularly under the common law agency test.
There are three main tests used to determine employee status. The economic reality test is used to determine employee status for purposes of the Fair Labor Standards Act, while the common law agency test, which would be most applicable in this case, is used for purposes of collective bargaining for most private sector employees under the NLRA. Finally, the adoption of the ABC test for the NLRA was approved by the House of Representatives in March 2021. The ABC test is unique in respect to its presumption of employee status.
The common law agency test considers factors like extent of control exercised by a hiring entity over the worker, whether the worker is engaged in a distinct occupation or business, and the level of skill required by the worker to provide services, all of which are evident in the reasoning for this decision.
The decision was upheld in 2016 when a different regional director of the NLRB resolved that musicians working for Fiddlehead Theatre Company are statutory employees and thus entitled to join the Boston Musicians Association, a union representing over 1,600 members around the Boston metropolitan area.
Independent contractors are not protected under the NLRA, so setting the precedent that orchestral musicians are employees strengthens labor movement-related activity. Ultimately, only workers classified as employees can join a union.
The NLRA encourages collective bargaining and protects workers’ right to organize. The right to strike is protected, but whether the objects of a strike are lawful is precarious and often determined by the NLRB. The NSO musicians would be considered economic strikers, those who strive for some economic concession from their employers.
The final agreed upon contract raises the base salary to $171,879 in 2026 from about $159,000. This six-figure income already appears imposing, and a strike for more money could seem unnecessary. Tubist Peter Wahraftig, who previously played in the Chicago Symphony Orchestra (CSO), explains “it’s hard (for the public) to have sympathy for someone who makes that salary.”
But there are other justifications for why musicians in major orchestras would request a higher salary. Orchestral musicians are in an extremely specialized and competitive industry, where the job market is cutthroat. Major orchestras tend to be located in cities, where the cost of living is higher. In Nov. 2022, the average rent in Chicago reached an all-time high of $1925, still far behind New York City’s $3353. Major orchestras across American cities feature world-class musicians who deserve world-class salaries.
Compared to other orchestras, the NSO lags behind. This September, the New York Philharmonic reached an agreement that would raise their base salary to $205,000. Orchestra members in Boston, Chicago and Los Angeles receive salaries in the $200,000 range. While NSO musicians arranged their most recent strike, they cited the Philharmonic’s new contract as a reason for obtaining higher wages.
There are further complications regarding the NSO being an affiliate of the Kennedy Center. As such, the center shares many of its services and covers over half of the NSO’s approximately $60 million annual expenses.
During the first night of the Bareilles concert, NSO musicians adorned in matching red shirts distributed leaflets to incoming audience members. Kennedy Center safety officials ordered the musicians to move to designated “gathering areas” along the edge of the center or be forcibly removed by the police. The NSO filed an unfair labor practice with the NLRB against the Kennedy Center, citing the security’s actions as “aggressive and illegal,” and a violation of their statutory rights. In return, the Kennedy Center produced a statement clarifying their right to “determine the precise location, time, and all manner of restrictions for such activities.”
The Kennedy Center is an institution in and of itself; they are not a random venue commonly associated with the NSO. This tenuous relationship in which the NSO is contractually under the Kennedy Center restricts the rights of musicians to protest as the center has their own interests and reputations in mind. If the NSO distributed leaflets at a venue with less name recognition, it is likely they would not have faced threats of police action.
Other striking strategies include raising public consciousness through social media involvement and other methods. Pressure was put on the Kennedy Center as the NSO’s musicians’ union took to Instagram. Their account posted updates until their new contract was established. Musician Sara Bareilles also posted in support, bolstering recognition and affinity for NSO musicians. These are actions the Kennedy Center cannot control, even if the NSO is their affiliate.
Typically it’s teachers or blue collar workers—not artists—people picture when hearing about picketing workers. Yet, artists like orchestral musicians can and do need to picket to protect their rights as workers. Since orchestral jobs are difficult to obtain, musicians often feel like they must be satisfied with the conditions they receive. As clearly established, this is not the case and musicians often need to protect their livelihoods. However, as changes in communication and technology enhance the public’s connection with striking workers, labor movement activity for musicians feels more palpable and tangible.
