The virtual orchestra machine and its proponents have lost again. At the end of July, the New York State Employment Relations Board determined that the agreement between Local 802 and the Opera Company of Brooklyn — including the groundbreaking ban on the virtual orchestra machine — is legal and binding.

The dispute with the opera company goes back two years, when Local 802 protested the use of the machine during the opera company’s performances of “The Marriage of Figaro.” By using a machine instead of live musicians, the company was setting the stage for a showdown.

Initially, the company agreed to negotiate with the union, producing the world’s first contract with a ban on the virtual orchestra machine.

But then the company reversed its position, alleging that its board had not considered the effect of the contract. First it said that the contract was illegal. Then the company said that it was coerced into signing the contract. And then it said that it was not under any legal obligation to negotiate with the union.

Each of these arguments were found to be meritless, once at the NLRB and now at the state board.

The upshot of all this is that the ban stands and the company must bargain with the union in good faith if it wishes to continue putting on performances.

AN INNOCENT MACHINE?

The first argument the opera company had made was that the agreement between it and Local 802 was illegal. Why? Because the agreement banned an “innocent” third party’s product: the virtual orchestra machine.

This argument may seem odd. But generally speaking, labor law says that in any labor dispute, unions are not usually allowed to take action against innocent third parties or their products. (The slang for this is “hot cargo” — it comes from longshore workers, who unload cargo ships for a living.)

But if the dispute involves technology — like the virtual orchestra machine — and if the technology threatens to take away jobs, then the courts have found that unions have much greater latitude to protest and protect their traditional job assignments.

In other words, if your job is at stake, you have a lot more freedom to fight back.

In this case, the labor board found that Local 802, in banning the machine, was protecting musicians’ jobs. So the ban on the virtual orchestra machine was deemed by the NLRB to be a lawful work preservation clause.

NEW VICTORY

The other arguments that the employer made were that it was coerced into signing the agreement and that it had not legally recognized the union as the bargaining agent of the musicians.

But the board held that the opera company had voluntarily recognized Local 802 by entering into negotiations with it. Therefore, by reneging on its agreement, the company committed an unfair labor practice.

In its decision, the board has required the company to recognize Local 802 as the musicians’ lawful bargaining agent. The company must also honor the terms of its agreement — which includes the ban on the virtual orchestra machine.

As a side note, the board also found that the musicians who performed for the opera company were employees rather than independent contractors and therefore entitled to legal protection under state labor laws.

We’ve won both the battle and the war. The battle was about whether or not the Opera Company of Brooklyn would honor its agreement. But the war was over a larger question: Are bans on the virtual orchestra machine legally enforceable? Happily, the answer is yes.