was used interchangeably with the term "worker" throughout the sessions.  Town & Country, 116

S.Ct. at 454, citing, S,Rep.  No. 573, 74th Cong.  1st Sess. 6 (1935); H.R. Rep. No. 969, 74th 

Cong., 1st Sess., 8 (1935);H.R Rep. No.972,74th Cong., 1st Sess., 8 (1935); H.R Rep, No. 1147, 

74th Cong., 1st Sess., 10 (1935).  Although Congressional Reports include references to "every

man on a payroll," there is no evidence that an individual must be on a payroll to be considered

an employee. Town & Country, 116 S.Ct. at 454, citing, 79 Cong.  Rec. 9686 (1935) (colloquy

between Reps.  Taylor and Connery).

         There is no dispute that unpaid staff perform work and as such would be defined as 

"workers."(9) (Ex.  J-1A) WBAI operates seven days a week, 24-hours a day transmitting radio 

broadcast programs. (T., p. 29 LL. 8-9).  No paid staff work from 8 P.M. to 5 or 6 A.M. (T., p. 

162 LL. 8-19) All work during this nine to ten hour period is performed by unpaid staff. (T., p. 

162 LL. 16-19) Although the Employer keeps no centralized records of how many hours unpaid staff 

work in a given week or month (T., p. 164 L. 18 -- p. 165 L. 12 ), some unpaid staff work in 

excess of sixty (60) hours per week on a regular basis.(10) (T., p. 297 LL.  1-15).  Unpaid

staff produce the vast majority of programs listed in the stations "folio"

(T., p. 162 LL.21-23; Ex.  U-

_________________________________________________________________________

         9    Black's Law Dictionary defines "work" as follows:
              Work. To exert one's self for a purpose, to put forth effort for the attainment of
              an object, to be engaged in the performance of a task, duty, or the like.  The
              term covers all forms of physical or mental exertions, or both combined, for the
              attainment of some object other than recreation or amusement.
Black's Law Dictionary 1605 (6th ed. 1990).  Clearly, a 60 hour per week job is not done for
amusement.

         10   The Employer's records on unpaid employees are spotty at best.  The list of unpaid
staff that the Employer presented at the hearing was so incomplete and incorrect that the
Hearing Officer requested that the Employer present a revised list as supplemental evidence.
(Ex.  E-2) The list that the Employer submitted as supplemental evidence is significantly
different than the original fist. (See list submitted to the Hearing Officer on August 1, 1996)

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