- 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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