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4. The Common Law
it is essential to apply common law principles, especially here where there is no
specific case law on point, consistent with congressional intent that the Board and courts
interpret the Act broadly when determining who is an "employee."(14) Under common law principles
regarding agency, master-servant relations, or employer-employee relations, as they are more
typically described today, unpaid staff at WBAI fall squarely within the definition of
Although the authorities have frequently enumerated various elements the presence of
which tend to indicate that a given relationship is that of employer and employee, no one
fact or circumstance is necessarily conclusive, and whether such relationship exists is
to be determined from all the facts and circumstances of the case.... In determining
whether the relation between parties is that of master and servant rather than some other
legal relafionship, it is necessary to consider the usual attributes of each, such as the
actual relationship which exists between the parties, and the extent to which the parties
are economically interdependent. The parties belief or intent as to their relationship is
a fact to be considered in determining the existence of a master-servant relationship.
30 C.J.S. § 6, Employer-Employee.
Under the conunon law, the essential characteristic of the master-servant relationship
is the right of the master to direct and control the services that are rendered by the servant
14 Congress has been clear that it expects the Supreme Court to interpret the NLRA
consistent with common law principles.
The Supreme Court recently stated a presumption that a statutory use of the term
'employee' should be taken to have it common law meaning unless Congress "clearly
indicates otherwise," observing wistfully that after each of two prominent decision in
which the Court ventured beyond the common law guidelines, one of them a decision
construing the NLRA, Congress had "amended the statute so construed to demonstrate
that the usual common-law principles were the keys to meaning," As the court noted,
[when] the NLRA "defined 'employee' to mean (in relevant part) 'any employee"', it
failed to indicate rejection of the common law model.
Willmar Electric Service, Inc. v. N.L.R.B., 968 F 2d 1327,1329 (D.C. Cir. 1992) cert denied,
113 S.Ct. (1993)(citations ornitted). See also, Town & Country 116 S. Ct. at 454, referencing
the amendment of the Act to explicitly overturn N.L.R.B. v. Hearst Publications, Inc., 322 U.S.
111 (1944), affirming, 39 NLRB 1256 and 39 NLRB 1245 (1942) and Packard Motor Car Co. v.
N.L.R.B., 330 U.S. 485 (1947) to exclude independent contractors and supervisory employees.
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