- 13 -
(T.. p. 248 L. 20 -- p. 253 L. 20), fall under the same discipline and grievance procedures as 

paid staff (T., p. 187 L. 16 -- p. 190 L. 10 ), use the same facilities as paid staff (T., p.

183 LL. 13 25), must be licensed as must paid staff in perfomiing the same functions "on the

board" (T., p. 198 L. 13 - p. 200 L. 11), and are required to achieve the same fund raising

goals for the station as paid staff (T., p. 268 L. 10 - 269 L. 25). Some work more hours per

week than paid staff. (T., p. 297 LL. 1-15 ) None of the factors are present here that led

the Court to determine the retirees are not "employees."  According, the Hearing

Officer should find that WBAI unpaid staff are "employees" within the meaning of the Act.

         The Court's analysis in Phelps Dodge Corp. v. N.L.R.B., supra, further supports such a

finding.  There the Court included as "employees" applicants who had applied for jobs, but had

not been hired, and were therefore receiving no compensation whatsoever.  Id.. 313 U.S. at 197.

The Court also held that economic strikers, who receive no compensation from the employer and

often are not eligible for unemployment benefits, are "employees" protected by the Act.  Id.,

313 U.S. at 189.  Certainly, if applicants and strikers are "employees," workers providing

services to WBAI for up to 80 hours per week also are "employees."

         Moreover, Black's Law dictionary defines an employee as "a person in the service of 

another under any contract of hire, express or implied, oral or written, where the employer has 

the power or right to control and direct the employee in the material detail of how work is to

be performed." Black's Law Dictionary 525 (6th ed. 1990).

         In the instant case, unpaid staff may be recruited or "hired" by paid staff and asked

to take on a particular task or develop a particular program. (T., p. 249, L. 5 - p. 252 L.9)

Unpaid staff are required under the contract to work a specified number of hours per

month or every two


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