WBAI Pacifica Foundation

National Labor Relations Board - Board Decisions

Aug 26, 1999

328 N.L.R.B. 1273 (N.L.R.B. 1999)

WBAI PACIFICA FOUNDATION 1273
WBAI Pacifica Foundation and United Electrical,
Radio & Machine Workers of America (UE) and
its Local 404. Cases 2–UC–496 and 2–UC–517
August 26, 1999
DECISION ON REVIEW AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On February 12, 1997, the Regional Director for Re-
gion 2 issued a Decision and Order Clarifying Unit find-
ing it appropriate to include the classifications of Busi-
ness Director and unpaid staff in the existing unit in the
collective-bargaining agreement between the Employer
and the Union. The Employer filed a timely Request for
Review of the Regional Director’s inclusion of the un-
paid staff in the existing unit and the Union filed a re-
sponse in opposition.
On June 4, 1997, the Board granted the Employer’s
Request for Review. Thereafter, the Employer and the
Union filed briefs on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, we con-
clude, contrary to the Regional Director, that the unpaid
staff should be excluded from the existing bargaining
unit.1
The Employer is a not-for-profit corporation engaged
in operating a noncommercial FM radio station. The
station does not accept advertising and is supported by
listener contributions.
In 1987, the Employer voluntarily recognized the Un-
ion as the exclusive collective-bargaining representative
in a unit of all paid and unpaid, full-time or part-time
programming, technical, bookkeeping and clerical work-
ers. Paid and unpaid staff have been included in the bar-
gaining unit in successive collective-bargaining agree-
ments. The most recent agreement was extended until
April 30, 1996. At the time of the hearing, there were
approximately 25 paid staff and 200 unpaid staff in the
unit.
Unpaid staff are not subject to the hiring procedures
prescribed for paid staff in the collective-bargaining
agreement. Instead, some unpaid staff are brought in by
management or through an introduction by paid staff.
Some simply walk into the station. Unpaid staff may
apply for paid positions, but receive no special prefer-
ence or consideration.
Unpaid staff do not receive wages, sick leave, vaca-
tions or medical, dental and health benefits. No workers’
compensation or unemployment insurance payments are
made on behalf of unpaid staff. The number of hours
that unpaid staff work is a matter within their discretion
and desire.

1 The Employer has requested oral argument. The request is denied
as the record and the briefs adequately present the issues and the posi-
tions of the parties.
Unpaid staff produce a majority of the Employer’s
programs under the general direction of the Program Di-
rector. The Program Director has the authority to pre-
empt a program and to shape its format. Testimony of
unpaid staff shows that their programs were initially ap-
proved by the Program Director. After that approval, the
unpaid staff were allowed essentially to act independ-
ently.
Under the collective-bargaining agreement, a volunteer
who works at least 10 hours per month for 4 months or
20 hours per month for 2 months is designated as unpaid
staff and is covered by the agreement. Under the agree-
ment, unpaid staff are required to attend general manager
meetings, department meetings and meetings to organize
events. The agreement provides travel reimbursement
and child care allowance for unpaid staff. The agreement
also provides that unpaid staff may file and process
grievances to arbitration. If unpaid staff substitute for
paid staff, the agreement provides that unpaid staff re-
ceive contract wages. The agreement also makes clear
that when an unpaid staff member substitutes for a paid
staff member, the unpaid staff member is considered to
be a paid staff member for the duration of the substitu-
tion.2
The Regional Director found that unpaid staff fell
within the Section 2(3) definition of employee, based on
the Supreme Court’s approval of the Board’s broad read-
ing of the definition in NLRB v. Town & Country Elec-
tric, 516 U.S. 85 (1995). The Regional Director pointed
to the Court’s citations of various definitions of em-
ployee such as a “worker” and “someone who works for
another for hire.” He concluded that unpaid staff were
within these definitions of employee because they pro-
vide an essential service to the Employer and are subject
to the Employer’s control.
Regarding the subject of compensation, the Regional
Director found that the Board would be defining “em-
ployee” narrowly and restrictively if it were to require
the receipt of wages. He relied on the Supreme Court’s
finding in Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941), that applicants for employment (who do not re-
ceive wages from an employer) are statutory employees.
The Regional Director further found that even though
unpaid staff do not receive wages, they receive some
form of compensation in the form of travel reimburse-
ment and child care allowance. He also noted that they
are paid for the time they act as substitutes for paid pro-
ducers and that they receive finances to produce their
programs. The Regional Director concluded that the law
supports a finding that the unpaid staff are statutory em-
ployees. We disagree.
To be sure, the Court found, in the cases relied on by
the Regional Director, that the reach of Section 2(3) is
2 Sec. 8F of the agreement provides that an individual cannot be paid
staff and unpaid staff at the same time.
328 NLRB No. 179
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
broad. However, in each case where the Court found
statutory employee status, there was at least a rudimen-
tary economic relationship, actual or anticipated, be-
tween employee and employer. In Town & Country
Electric, where the Court decided that the Board lawfully
interpreted Section 2(3) to include company workers
who are also paid union organizers, the individuals at
issue received wages from the employer as well as the
union. In Phelps Dodge, where the Court held that an
employer cannot lawfully refuse to hire applicants be-
cause of their union affiliation, the applicants were ap-
plying for wage-earning jobs. While the Court rejected
arguments in both cases that would have narrowed the
Section 2(3) definition to exclude paid union organizers
or job applicants, it did not suggest that the definition
should be so broad as to include individuals, like mem-
bers of unpaid staff at issue here, whose relationship with
the employer was devoid of any form of compensation,
current or contemplated.
In Town & Country Electric, for example, the Court
looked to the ordinary dictionary definition of employee,
which includes compensation. The Court wrote:

The ordinary dictionary definition of “employee” in-
cludes any “person who works for another in return for
financial or other compensation.” American Heritage
Dictionary 604 (3d ed. 1992). See also Black’s Law
Dictionary 525 (6th ed. 1990) (an employee is a “per-
son 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 em-
ployee in the material details of how the work is to be
performed”). [516 U.S. at 90. Emphasis added.]

The definition of the term “hire” in either its noun or verb
form also includes compensation. Thus, Black’s Law Dic-
tionary (6th ed. 1990) contains the following definition:

Hire, v. To purchase the temporary use of a thing, or
to arrange for the labor or services of another for a
stipulated compensation.

Hire, n. Compensation for the use of a thing, or for la-
bor or services.

Compensation, in connection with labor or services, is de-
fined in economic terms in Black’s Law Dictionary (6th ed.
1990):

Remuneration for services rendered, whether in salary,
fees, or commissions.

Thus, when the Court stressed the breadth of Section 2(3) in
Town and Country Electric, that breadth was bounded by
the presence of some form of economic relationship be-
tween the employer and the individual held to have statutory
employee status.
The Court’s finding in Phelps Dodge that job appli-
cants were employees under Section 2(3) similarly relied
on economic relationships. The denial of employment to
applicants because of their union affiliation not only pre-
vented the applicants from entering the employer’s work-
force, it also had an adverse impact on those already em-
ployed by the employer. The Court viewed the protec-
tion of job applicants against discrimination for union
affiliation as a necessary part of protecting employees’
right to self-organization and improvement of their eco-
nomic standards. Noting that Congress’ ultimate concern
in passing the Act was to eliminate the causes of certain
obstructions to the free flow of commerce, the Court
wrote:

This vital national purpose was to be accomplished “by
encouraging the practice and procedure of collective
bargaining and by protecting the exercise of workers of
full freedom of association.” Sec. 1 Only thus could
workers ensure themselves economic standards conso-
nant with national well-being. Protection of the work-
ers’ right to self-organization does not curtail the ap-
propriate sphere of managerial freedom; it furthers the
wholesome conduct of business enterprise. [313 U.S.
at 182.]

The Court concluded:

Discrimination against union labor in the hiring of men
is a dam to self-organization at the source of supply.
The effect of such discrimination is not confined to the
actual denial of employment; it inevitably operates
against the whole idea of the legitimacy of organiza-
tion. In a word, it undermines the principle which, as
we have seen, is recognized as basic to the attainment
of industrial peace. [Id. at 185.]

Thus, although the applicants did not receive any form of
compensation from the employer, they were seeking entry
to wage-paying jobs and the discrimination against them
had an adverse impact on those who were already wage
earners.
The Court also emphasized compensation in determin-
ing employee status in Chemical Workers v. Pittsburgh
Plate Glass, 404 U.S. 157 (1971). There the Court ad-
dressed the question of whether retired employees were
employees within the meaning of the Act for the pur-
poses of bargaining about changes in their retirement
benefits. The Court decided they were not. Stressing
that the Act is concerned with remedying the inequality
of bargaining power between employer and employee,
the Court found that this concern did not extend to indi-
viduals who had left the work force and no longer
worked for an employer. Noting House comments refer-
ring to the standard dictionary definition of employee as
someone who works for another for hire, the Court
wrote:

WBAI PACIFICA FOUNDATION 1275
In doubtful cases resort must still be had to economic
and policy considerations to infuse Section 2(3) with
meaning. But, as the House comments quoted above
demonstrate, this is not a doubtful case. The ordinary
meaning of “employee” does not include retired work-
ers; retired employees have ceased to work for another
for hire. [404 U.S. at 168.]

At the heart of each of the Court’s decisions is the
principle that employee status must be determined
against the background of the policies and purposes of
the Act. The damage caused to the nation’s commerce
by the inequality of bargaining power between employ-
ees and their employers was one of the central problems
addressed by the Act. A central policy of the Act is that
the protection of the right of employees to organize and
bargain collectively restores equality of bargaining
power between employers and employees and safeguards
commerce from the harm caused by labor disputes. The
vision of a fundamentally economic relationship between
employers and employees is inescapable.
Applying the teaching of the Court to the case before
us on review, we find that these unpaid staff are not em-
ployees within the meaning of Section 2(3) because there
is no economic aspect to their relationship with the Em-
ployer, either actual or anticipated. In this connection,
we, like the Court in Pittsburgh Plate Glass, find that
this case is not a doubtful one. The ordinary meaning of
employee does not include unpaid staff; unpaid staff do
not work for another for hire. As we have observed ear-
lier, to work for hire is to receive compensation for labor
or services. Unpaid staff do not receive compensation
for their work at the station.
The nature of unpaid staff’s relationship with the Em-
ployer has virtually no economic component. They re-
ceive no wages or fringe benefits. To the contrary, they
often raise money or contribute money to the station.
Mimi Rosenberg, an unpaid staff member for approxi-
mately 28 years testified:

I know there is no cost that has ever paid or will
compensate me for the 28 years not only of labor
time but economic time that I put in to doing the
programming which is buying my own tapes, doing
my own mailings and numerous other economic
commitments that I have made to the station as well
as most of the unpaid staff.
. . . .
I just wanted to make sure you understand that
we also contribute a lot economically to the station
as well.

To the extent that unpaid staff receive compensation
for their work, it is not compensation from the Employer
and is not economic in nature. Thomas Shine, also
known as Brother Shine, an unpaid staff member for 18
months testified:

What has been money for me has been the work
that I’ve been able to put on the air; what has been
[pay] for me has been the fact that when I came to
BAI and I still do feed the homeless, I was feeding
the homeless every other week and I was feeding at
least 100 to 200 people every other week.
After coming to BAI, we do feedings where we
feed over 1,000 in all five boroughs, plus New Jer-
sey. So when I go into my community and one of
my little brothers six or seven years old runs up to
me and says, hey, Brother Shine, how you doing,
that’s pay to me.
When one of the panhandlers is down in the
subway and getting ready to ask for money and says,
oh, that’s Brother Shine, hey how you doing. That’s
pay to me.
So when I’ve heard the witnesses talk about paid
staff and unpaid staff, and volunteers, personally you
can throw all that out the window for me. I get my
pay—I do what I need to do.

The testimony of the unpaid staff members shows that they
do not work for “hire” in the ordinary sense of the word.
They work out of an interest in seeing the station continue to
exist and thrive, out of concern for the content of the pro-
grams they produce, and for the personal enrichment of
doing a service to the community and receiving recognition
from the community.
Nor do the contractual provisions allowing unpaid staff
to receive reimbursement for travel and a child care al-
lowance require a different result. There is no evidence
that any unpaid staff have ever received a child care al-
lowance. Although there is evidence that at least one
unpaid staff member received travel reimbursement, it
does not appear to be a widespread practice. As unpaid
staff member Rosenberg testified above, it is common
for unpaid staff to assume many of the economic burdens
of producing the programs. That unpaid staff occasion-
ally receive travel reimbursement and that those of them
who have children are eligible for a child care allowance,
is insufficient evidence that unpaid staff receive compen-
sation for their work at the station.3
That unpaid staff are paid when they substitute for paid
staff is also not evidence that they receive compensation
for their work for the Employer. As we noted earlier,
Section 8F of the collective-bargaining agreement pro-
vides that an individual cannot be paid staff and unpaid
staff at the same time. When an unpaid staff member

3 There is no contention and no evidence that the relationship be-
tween the unpaid staff and the Employer is such that the Employer
would be required to meet the minimum wage, overtime, and record-
keeping provisions of the Fair Labor Standards Act, 29 U.S.C. Sections
206(b), 207(a), 211(c), 215(a)(2), (a)(5). Cf. Tony & Susan Alamo
Foundation v. Sec’y of Labor, 471 U.S. 290 (1985). (Associates who
worked for commercial enterprises of religious foundation and received
benefits such as food, clothing and shelter in exchange for their services
were employees covered by the Fair Labor Standards Act.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
substitutes for a paid staff member, the unpaid staff
member is, therefore, treated as a paid staff member for
the duration of the substitution. They do the work and
receive the pay of the paid staff member.
Finally, the finances that unpaid staff receive for their
programs is not a form of remuneration for services they
have rendered to the Employer. Rather, the record shows
that the purpose of these funds is to pay for the expenses
of producing the programs, such as engineering and pub-
licity.
The occasional reimbursement for travel, the contrac-
tual eligibility for a child care allowance, the payment of
paid staff wages when substituting for paid staff, and the
finances for producing programs are insufficient evi-
dence of compensation, either monetary or in the form of
a benefit given in exchange for labor. Nor is there evi-
dence of anticipated compensation. The record shows
that unpaid staff are given no preference when they apply
for paid staff positions. Unpaid staff positions are not,
therefore, a path or stepping stone to paid positions. In
fact, some unpaid staff have remained in unpaid posi-
tions for many years.
These circumstances show that the relationship be-
tween the Employer and unpaid staff is not that of em-
ployer and employees contemplated by the Act. Unpaid
staff do not depend upon the Employer, even in part, for
their livelihood or for the improvement of their economic
standards. They do not work for hire and thus the Act’s
concern with balancing the bargaining power between
employer and employees does not extend to them.
For all of these reasons, we conclude that unpaid staff
are not employees within the meaning of Section 2(3) of
the Act and, accordingly, we shall clarify the existing
bargaining unit to exclude them.
ORDER
IT IS ORDERED that the classification of unpaid staff be
excluded from the existing unit in the collective bargain-
ing agreement between the Employer and the Union.