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VIII(F)).  The positions they hold and the work that they do is exactly the same as that

performed by paid staff, whether full time, part time, or temporary. (T., p. 52 L. 7 -- p. 53

L. 25) They receive some, but not all, of the benefits afforded paid staff. (T., p. 107 LL.

20-25; Ex.  J1-A, Ex.  J1-B) Moreover, paid and unpaid staff alike are subject to discipline

by the Employer (T., p. 187 L.16 -- p. 188 L. 17), including suspension (T., 188 LL. 8-17), must

participate in fundraising efforts on behalf of the Employer, and, by contract, attend mandatory

meetings. (T., p. 268 L. 10 -- p. 269 L. 25; J1-A, J1-B) To exclude workers such as these from

the protection of the Act would undermine the purposes of the Act.

         If [unpaid staff] employees were excluded from participation in union activities and
         from protections against employer intimidation, there would be created a subclass
         of workers without a comparable stake in the collective goals of their [paid staff]
         co-workers, thereby eroding the unity of all employees and impeding effective
         collective bargaining.

Id., 467 U.S. at 892 (citations omitted).  By contrast, including WBAI unpaid staff as employees 

under the Act strengthens the ability of all workers there to bargain over the terms and 

conditions of employment they share.

         That retirees are not actively working, providing services to the employer or available 

for work for hire was critical to the Court's decision that retiree were not "employees" under

the Act.  Chemical Workers v.Pittsburgh Plate Glass Co.,404 U.S.atl65-166. By contrast, in the

instant case, unpaid staff are actively working, performing exactly the same functions as

full-time, part time, and interim paid staff (T., p.53 LL.6-25 ) They are available for hire and,

in fact, are usually the replacements for paid staff on leave. (T., p. 121 L. 21 - p. 122 L. 16 )

Many paid staff were previously unpaid staff, including the current general manager of

WBAI. (T., p. 108 L.  22 -- p. 109 L. 16 ) Unpaid staff are selected or " hired" in a manner

similar to that of paid staff


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