North American Soccer League

National Labor Relations Board - Board Decisions

Apr 30, 1979

241 N.L.R.B. 1225 (N.L.R.B. 1979)

I225
The American Sofcer Constltu-
Nortb
League Piayers
8(aXS)
2(6)
2-
17740,'
SO.'
1 236 1317 diwnting
1 Oliicirl taken Le reford reprerentation p r d i n g ,
Case no tenn "record" &fined Sec.
102.69(g) Board's Ruln Regulation4 Serica See
LTY El ter~ i temc, Ine.. (1%7), F.2d Cir.
1968): G& A@ B~cmge 167 151 (1969, F.2d
Cir. 1969): ktcrrVpc PeneIIo, F.Supp. (D.C.Va.. 1%7):
Folle~r Cop., 164 (1967). F.2d Cir. I%@; Sec.
9(d) NLRA. .s
complaint thrt Rapondent rehscd
Unioa ceriain nerrraary barg~ining inform-
tion, January referena
representive
United
eviden-
detedned
Case
discloses
leaguewide
sin-
NORTH AMERICAN SOCCER LEAGUE
North League and Its

ent Member Clubs andThe
American Soccer
Association. Case 2-CA-15966
April 30, 1979
DECISION AND ORDER
Upon a charge filed on October 30, 1978, by The
North American Soccer League Players Association,
herein called the Union, and duly served on The
North American Soccer League and its Constituent
Member Clubs, herein collectively called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Acting Regional Director for
Region 2, issued a complaint and notice of hearing on
November 24, 1978, and, on January 23, 1979, an
order amending the complaint, against Respondent,
alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section and (I) and
Section and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint,
order amending the complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges, in substance, that on September 1,
1978, following a Board-directed election in Case
RC- the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;' and
that, commencing on or about September 12, 1978,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining rep-
resentative although the Union has requested and is
requesting it to do On December 26, 1978, Re-
spondent filed its answer to the complaint admitting
in part, and denying in part, the allegations in the
complaint.
On February 2, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 14,
1979, the Board issued an Order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
NLRB (1978) (Member Murphy in part).
notia is of in the
2-RC-17740, the is in 102.68 and
of the and 8, as amended.
166 NLRB 938 enfd. 388 683 (4th
Ca, NLRB enfd. 415 26
(5th Co. v. 269 573
NLRB 378 enfd. 397 91 (7th
of the amended.
'Although the original also alleged to
provide the with and relevant

it was amended on
23. 1979. to delete all thmto.
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and the Notice To
Show Cause, Respondent contests the validity of the
Union's status and certification on sev-
eral grounds. First, Respondent argues that due to
substantial changes in the composition of its member
clubs since the representation petition was filed and
the Union was certified the clubs which have joined
the North American Soccer League subsequent to the
initiation of the representation proceeding will be de-
nied due process of law unless a hearing is held to
determine whether they have an obligation to bargain
with the Union. Second, Respondent proffers newly
discovered evidence which reveals that, in addition to
sponsoring a summer soccer camp for children, the
Union sponsors indoor soccer matches and foreign
tours during the off season, allegedly in direct compe-
tition with Respondent. Finally, Respondent alleges
that since the certification the Union has violated its
duty of fair representation by attempting to deprive
all foreign players of entrance to the States to
pursue their employment with member clubs and has
threatened foreign players with deportation if they do
not support the Union. Respondent contends that
these are special circumstances warranting an
tiary hearing and denial of the Motion for Summary
Judgment.
In support of the Motion for Summary Judgment,
the General Counsel contends that there are no issues
requiring a hearing and that Respondent raises no
issues which have not been by the Board
* in the underlying representation proceeding. We
agree with the General Counsel.
Review of the entire record, including that in
2-RC-17740, that at the representation case
hearing Respondent contended that the unit sought
by the Union was inappropriate. The Union sought
to represent a single unit of all profes-
sional soccer players employed by Respondent's
member clubs, contending that the League and each
club are joint employers of the players on each team.
Respondent claimed that each individual member
club is an autonomous entity, and, therefore, only
gle-club units are appropriate in view of the lack of
joint-employer status. After the hearing and pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended
the proceeding was transferred to the Board for deci-
sion. Respondent thereafter filed a motion to reopen
the record alleging, inter alia, that newly discovered
& Lomb
teams5
it.6
& Lomb
r e ~ o r d . ~
alia,
' 108 I555 '
13 17, ct scq.
fn. 1.
the fn. 18
thc trl.
proceeding^.^
t h r o \ ~ ~ l r
94, wlth
v111lJ
ballot^.^ oI
issued ir
IY7H.
hnr-
fount1
Union,Io
iu
ir
8(a)(5) relitigatc
for
denied.I2
Union.
the
d~s-
docs
15
T o r suted representation duw
rewnsidera~~cm
notes votes 01' the
affected
lo Respondent's 10.
since Union'a
revim Bcwrtl'r
request.
Co. N.L.R.B., 146, 162 (1'441
102.67(1) 102.69(c).
' 1 baausc. In nc
cordance 8 1 %
portunity asscrt the
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence established that the Union, by sponsoring a
children's summer soccer camp, was a competitor of
Respondent and was therefore not entitled to bargain
with it under the rule of Bausch Optical Com-
pany.' The Union also filed a motion to reopen the
record for the introduction of evidence in further sup-
port of its argument that The North American Soccer
League is an employer.
In its decision and direction of election issued on
June 30, 1978, the Board found The North American
Soccer League and its Constituent Member Clubs,
herein collectively called Respondent, to be a joint
employer and further found appropriate a leaguewide
unit consisting of all professional soccer players em-
ployed by Respondent's member clubs, excluding the
players employed by Canadian In addition,
the Board, in denying Respondent's motion to reopen
the record, rejected its contention that the Union's
sponsorship of a summer soccer camp constituted di-
rect competition with Respondent such that the
Union should not be entitled to bargain with The
Board determined that the operation of a soccer
camp or clinic, being merely incidental to the respec-
tive primary purposes of the Union and Respondent,
was not the kind of direct competition contemplated
by the Bausch decision. Also, in light of its
finding that The North American Soccer League and
its Constituent Member Clubs are joint employers,
the Board found it unnecessary to reopen the record
to obtain the evidence proffered by the Union in this
regard and, accordingly, denied the Union's motion
to reopen the
On July 12, 1978, Respondent filed a "Motion for
Reconsideration or Rehearing for Clarification and
for Reopening of the Record," claiming, inter
that since the filing of the original petition the num-
ber and composition of the member clubs had
changed substantially. Respondent claimed that the
Board should clarify or reconsider its original deci-
sion and determine whether it had jurisdiction over
the new member clubs. Respondent argued that the
newly established clubs were entitled to be heard con-
cerning whether the Board's decision and direction of
election was applicable to them. The Board denied
this motion on July 25, 1978, noting that the unit
description in the original decision clearly included
employees of those clubs which had become members
NLRB (1954).
Member Murphy, dissentmg in part, would have included in the unit the
players employed by the Canadian teams. See her dissent at 236 NLRB
2 3 6 NLRB 1317,
Membcr Murphy would have granted both motions to reopen the record
on the ground that the evidence adduced might tend to support the position
that the Board should assert jurisdiction over Canadian clubs. See

of her partial dissent in 236 NLRB 1317.

of The North American Soccer League since
ception of the representation
The election was conducted on July 27
August 4; the Union won by a vote of 271 to
37 nondeterminative challenged ballots and 6
In the absence of objections to the conduct
the election, the Acting Regional Director
Certification of Representative on September I.
in which the Union was certified as the exclusive
gaining representative of employees in the unit
appropriate. Subsequently, Respondent refused to
bargain with the giving rise to the present
proceeding in which it appears that Respondent
raising issues which had been raised and determined
in the underlying representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
violation of Section is not entitled to
issues which were or could have been litigated in a
prior representation proceeding.
Respondent raised its claim regarding the change
in composition of its member clubs in its motion
reconsideration made in the representation proceed-
ing which the Board considered and With
respect to the allegations of union sponsorship of in-
door matches and foreign tours in the off season, Re-
spondent has merely offered cumulative evidence
concerning a claim already considered and rejected
by the Board as being insufficient to relieve Respon-
dent of its obligation to bargain with the
These two issues were raised by Respondent in
prior representation proceeding, and Respondent
does not offer to adduce at a hearing any newly
covered or previously unavailable evidence nor
it allege that any special circumstances exist which
would require the Board to reexamine the decision
made in the representation proceeding.
Respondent's contention that newly discovered evi-
dence revealing that the Union had violated its duty
of fair representation toward foreign players warrants
a hearing is without merit since such an allegation
the reasons in her partial dissent in the

sion, Membcr Murphy would have granted the motion for

Member Murphy that the of the excluded employees

Canadian clubs wuld not have the outwme of the election.

In a letter from counsel to the Union dated October

1978, Respondent indicated that,
it could not accept the re-
quest to bargain without waiving its right to judicial of the

original determination, it had decided to refuse the bargaining

See Pittsburgh Plate Glass v. 313 U.S. I:
Rules and Regulations of the Board Sees. and
Membcr Murphy would have granted this motion only
with her partial dissent, it would have provided the Board an
to reconsider its decision to refuse to jurisdiction over

Canadian clubs.

8(a)(5)
8(b)
Oilers,ls
2.
$500,000,
$50,000.
2(6)
herein.I4
11.
2(5)
111.
1.
secret-
9(a)
8(a)(5)
9(b)
a> d NLRB
=ntinr); A&. Inc.. 228 NLRB (1977) 111, above, occurring in with its operations
ing). not
" ' 5
jurisdiction entered
been these
1227 NORTH AMERICAN SOCCER LEAGUE
not a defense to an complaint.'' Likewise, Re-
spondent's allegation of union threats to have foreign
players deported if they do not support the Union is
more properly raised in an proceeding and is not
a defense to the complaint.
In view of the foregoing, we find that Respondent
has not raised any issue which is properly litigable in
this unfair labor practice proceeding. Accordingly, we
grant the Motion for Summary Judgment.
On the' basis of the entire record, the Board makes
the following:
I. THE BUSINESS OF RESPONDENT
Respondent is a nonprofit association comprised of
professional soccer teams operating in the United
States and Canada; its general purpose is to promote
the game of soccer in North America. Each of Re-
spondent's constituent member clubs is primarily en-
gaged in the business of promoting and exhibiting
professional soccer matches. During the preceding 12
months, a representative period, Respondent's con-
stituent member clubs collectively derived gross rev-
enues in excess of and purchased and
caused to be transported in interstate commerce
goods and materials valued in excess of
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
THE LABOR ORGANIZATION INVOLVED
The North American Soccer League Player Associ-
ation is a labor organization within the meaning of
Section of the Act.
THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section of the Act:
Bell Howell Company, 230 420 (1977) (Member Jenkins dis-
447 (Member Jenkins dissent-
Member Jenkins does rely on thex cares in reaching the result
herein.
As noted above. in the underlying representation care we did not assert
over Respondent's Canadian teams (Member Murphy dissenting
on the failure to do so.
All professional soccer players either on loan or
otherwise employed by the North American Soc-
cer League and its constituent member clubs. in-
cluding players on the following eligibility lists:
active, temporarily inactive, disabled, suspended,
ineligible, and military; excluding all officials of
the North American Soccer League, all manage-
rial or executive personnel of the North Ameri-
can Soccer League and its member clubs, all
players employed by the Toronto Blizzard, Van-
couver Whitecaps and Edmonton all
other employees and supervisors as defined in
the Act.
The certification
Between July 27 and August 4, 1978, a majority of
the employees of Respondent in said unit, in a
ballot election conducted under the supervision of the
Regional Director for Region 2, designated the Union
as their representative for the purpose of collective
bargaining with Respondent. The Union was certified
as the collective-bargaining representative of the em-
ployees in said unit on September 1, 1978, and the
Union continues to be such exclusive representative
within the meaning of Section of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about September 12, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about October 10, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
October 10, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that by such refusal Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES

W O N COMMERCE

The activities of Respondent set forth in section
Since the original Board determination of the appropriate unit, a third
Canadian club has the League. and the Toronto club has changed its
name. The unit description has modified to reflect changes.
8(a)(5)
certifrca-
tion
Poulty
company d / b / a Lamar
(1962), F.2d 600
1964), Burnerr
1 (1964),
F.2d
1.
2(6)
2(5)
9(b)
ccr11l1cJ
employccr 111 tha
purpose ol' colloc*
Section Wa) (d
1978, untl
the
exclusive h r .
of Ro-
hae en*
pructicm
8(a)(5)
Respondcn~
an3 ir
employma
them tn
and
mern.
8(a)(l)
unfnrr
mean.
2(6)
Iqc) l ~ h i r
L a h r Rels.
'l'ho
Constiruorr
oficcrr,
concerning
con*
Amtxican SK'M
bar*
the
All tu
Scr-
cluba. ~ n n
cluding lirtr:
oficials of'
manape
Amen-
clubr, nll
Van.
a l l
defined
wlth,
exercisa (tf
a h a t i v e Ihe
Act
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described in section I , above, have a close. intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and. if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of
as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Company, Inc., 136 NLRB
785 (1962); Commerce Hotel,
140 NLRB 226, 229 enfd. 328 (5th
Cir. cert. denied 379 U.S. 8 17 (1964);
Construction Company, 149 NLRB 14 19, 142
enfd. 350 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
The North American Soccer League and its
Constituent Member Clubs is an employer engaged in
commerce within the meaning of Section and (7)
of the Act.
2. The North American Soccer League Players As-
sociation is a labor organization within the meaning
of Section of the Act.
3. All professional soccer players either on loan or
otherwise employed by the North American Soccer
League and its constituent member clubs, including
players on the following eligibility lists: active, tem-
porarily inactive, disabled, suspended, ineligible, and
military; excluding all officials of the North Ameri-
can Soccer League, all managerial or executive per-
sonnel of the North American Soccer League and its
member clubs, all players employed by the Toronto
Blizzard, Vancouver Whitecaps, and Edmonton Oil-
ers, all other employees, and supervisors, as defined in
the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
of the Act.
4. Since September 1, 1978, the above-named la-
bor organization has been and now is the
and exclusive representative of all
aforesaid appropriate unit for the
tive bargaining within the meaning of
the Act.
5. By refusing on or about October 10,
at all times thereafter, to bargain collectively with
above-named labor organization as the
gaining representative of all the employees
spondent in the appropriate unit, Respondent
gaged in and is engaging in unfair labor
within the meaning of Section of the Act.
6. By the aforesaid refusal to bargain,
has interfered with, restrained, and coerced,
interfering with, restraining, and coercing.
in the exercise of the rights guaranteed to
Section 7 of the Act and thereby has engaged in
is engaging in unfair labor practices within the
ing of Section of the Act.
7. The aforesaid unfair labor practices are
labor practices affecting commerce within the
ing of Section and (7) of the Act.
ORDER
Pursuant to Section of the National
Relations Act, as amended, the National
tions Board hereby orders that the Respondent,
North American Soccer League and its
Member Clubs, New York, New York, its
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively
rates of pay, wages, hours, and other terms and
ditions of employment with the North
cer League Players Association as the exclueive
gaining representative of its employees in
following appropriate unit:
professional soccer players either on loan
otherwise employed by the North American
cer League and its constituent member
players on the following eligibility
active, temporarily inactive, disabled, suspended,
ineligible, and military; excluding all
the North American Soccer League, all
rial or executive personnel of the North
can Soccer League and its member
players employed by the Toronto Blizzard,
couver Whitecaps and Edmonton Oilers,
other employees, and supervisors as In
the Act.
(b) In any like or related manner interfering
restraining, or coercing employees in the
the rights guaranteed them in Section 7 of the Act.
2. Take the following action which
Board finds will effectuate the policies of the
"Appen-
dix."I6
l6
Lnbor
Lnbor
Blizzard,
1229 NORTH AMERICAN SOCCER LEAGUE
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Mail to all players in the collective-bargaining
unit copies of the attached notice marked
Copies of said notice, on forms provided by
the Regional Director for Region 2, after being duly
signed by Respondent's representative, shall be
mailed by Respondent immediately upon receipt
thereof.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
In the event that this Order is enforced by a judgment of a United States
court of appeals. the words in the notice reading "Posted by Order of the
National Relations Board"shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Relations Board."
APPENDIX
NOTICE TO EMPLOYEES

MAILED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with The
North American Soccer League Players Associ-
ation as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages. hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All professional soccer players either on loan
or otherwise employed by the North American
Soccer League and its constituent member
clubs, including players on the following eligi-
bility lists: active, temporarily inactive, dis-
abled, suspended, ineligible, and military; ex-
cluding all officials of the North American
Soccer League, all managerial or executive
personnel of the North American Soccer
League and its member clubs, all players em-
ployed by the Toronto Vancouver
Whitecaps and Edmonton Oilers, all other em-
ployees, and supervisors as defined in the Act.