The North American Soccer League

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1301 (N.L.R.B. 1979)

THE NORt AMERICAN S()(OCCR IA(;itIE
The North American Soccer League and its Constitu-
ent Member Clubs and The North American Soccer
League Players Association. Case 2 CA-16160
September 28. 1979
DECISION AND ORDER
BY CIIAIRMAN F:ANNIN(G ANI) MIMBI RS PIt NI I O
AND TRUESIDAI..
On July 30, 1979, Administrative Law Judge Har-
old Bernard, Jr.. issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, The North American Soccer
League and Its Constituent Member Clubs. New
York, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
I There are several inadvertent errors in the Administrative Law Judge's
Decision which we hereby correct: Item I of the 'nion's request for infor-
mation asks for all wrintten contracts known as standard player contracts n
effect as of the end of the 1978 NASL season. not the 1973 season as indi-
cated in the Decision. The correct citation or Ocean Sstems. Inc., is 227
NLRB 1593 (1977). and for Western Massachusetts Electric Compan. 228
NLRB 607 (1977). In the discussion of Respondent's confidentiality claim
the Decision cites Boston Trailer Corp., 223 F.2d 58 (Ist Cir. 19551: the
correct case name is Boston Herald-Traveler Corporation.
In addition, in his discussion of the agency status of the league president,
Woosnam, the Administrative Law Judge refers to the Board's findings in
the Soccer 2 case, 241 NLRB 1225 (1979), when in fact these findings appear
in the Board's Decision and Direction of Election Soccer 1). See 236 NLRB
1317, 1318-19 (1978).
Finally, in adopting the Administrative Law Judge's conclusion that the
Union is entitled to copies of all release forms, consent agreements, or other
forms in connection with employment or release from employment, we do
not rely on Axelson, Inc.., subsidiary of U.S. Industries, Inc., 234 NLRB 414
(1978), or International Union of Operating Engineers, Local Union No 12
(Associated General Contractors of America, Inc., Southern California Chap-
ter, e at.). 187 NLRB 430 (1970), cited in his Decision
)E[( ISI()N
SIAIIdlN1tI Oft it (sS
I[xROiI) BI RNARkI). JR.. Administrative law Judge: This
case arose in New York C'ity. New York. where it was
heard before me on NMa, 4. 1979. pursuant to a charge filed
hb The North American Soccer l.eague Players Association
(herein called the Union or the Charging Party) the previ-
ous JanuarN 22 and a complaint issued the following Febru-
ar' 23. The complaint alleges that The North American
Soccer l.eague and Its Constituent Member Clubs (herein
called Respondent or the League) violated Section 8a)(1)
and (5)of the Act by refusing to furnish information neces-
sarv and relevant to the Union's bargaining responsibilities
under the National Labhor Relations Act, as amended
therein called the Act).
Respondent filed an answer denying that it violated the
Act and more specifically denied the complaint allegations
(a) that the I.eague and its member clubs are joint employ-
ers. (b) of jurisdiction of the Board. (c) of the agenc status
of' IeagLue (lomissioner Phil Woosnam. (d) (of the appro-
priateness of a leaguewide bargaining unit. (e) of the status
of the lnion ias exclusive bargaining representative for unit
emploees. and (ft) of the relevance and necessity of the
informlalion requested hb the Union, which it admittedly
refused to furnish. Respondent's answer neither admitted
nor denied service of the charge. As to the complaint allega-
tion describing an election in which a majority of employ-
ees had voted in favor of the Union's representation. Re-
spondent admitted that "some" employees of some
members of the League had voted and that the Union was
thereafter certified on September 1, 1978.
Early in the hearing Respondent also moved to amend its
answer to make the following affirmative defenses: (I) that
the clubs and the League are not a single employer; (2) that
the complaint fails to name and join, and/or the Regional
Director has failed to serve, all members of the League.
who are indispensable parties; (3) that all the clubs herein
were not parties to the representation proceeding on which
the complaint was based: (4) that the place for the hearing
in the representation proceeding. New York City. was a
fi)rum, tno c(oies.t due to the clubs' locations throughout
the United States; (5) that the Union is not qualified to
represent unit employees because it (a) has attempted to
prevent a number of unit members from obtaining nonim-
migrant status and (h) has engaged in activities in direct
competition with the business of the clubs: (6) that since the
date of the t:nion's certification mans members of the unit
have signed authorization for representatives other than the
Uinion: and (7) that in the same period representatives
other than the Union. pursuant to authority granted by unit
members, have made demands upon some of the clubs for
recognition as the exclusive representatives of unit mem-
bers. During the hearing Respondent also (8) moved to dis-
miss the complaint as to four clubs. asserting that they had
not been served because, as to one club. California Surf, its
name did not appear on General Counsel's affidavit of ser-
vice of the complaint and notice of hearing, and as to three
others)' there was no return receipt attached signifying that
i Chicago Sting. Portland Timbers. and Seattle Sounders.
245 NLRB No. 168
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those clubs had received the documents; (9) moved to
transfer the hearing to the cities where those clubs are lo-
cated to accord them an opportunity to participate in the
proceeding; ( 10) alleged a denial of due process generally as
to (a) clubs which came into existence after the representa-
tion case had closed but before the election and which had
not participated in the representation case hearing and (b)
clubs either closing or newly opening subsequent to the rep-
resentation or unfair labor practice proceedings, because
such clubs would be governed by proceedings in which they
had no opportunity to appear. all arising from the naturally
changing composition of club membership in the league;
(11) asserted that the General Counsel, to Respondent's
prejudice, persisted in refusing to identify the clubs in-
volved in the proceeding; (12) moved for a stay in the pro-
ceedings because of pending collateral litigation: and finally
(13) asserted that the requested information was properly
denied the Union because (a) it constituted confidential
matters, or (b) it would be burdensome on Respondent to
produce, and (c) it involved, in some instances, employees
outside the unit, or (d) the Union could as well secure the
information itself.
Counsel for the General Counsel, the Charging Party,
and Respondent have filed briefs.
Upon the entire record including my observation of the
witnesses, I make the following:
FINDIN(iS Ot FA(1
I. PREI.IMINARY RESOI.UIrlONS
Forerunners 2 involving identical parties to this case, Soc-
cer I and Soccer 2, led respectively to Board certification of
the Union and a bargaining order requiring Respondent to
recognize and bargain with the Union on April 30, 1979.' In
those cases the Board considered and resolved many issues
Respondent attempted to raise herein. Thus, the Board de-
termined that the League and club members are joint em-
ployers, that Respondent's operations meet the standards
for assertion of Board jurisdiction, appropriateness of a
leaguewide bargaining unit, and the Union's status as ex-
clusive bargaining representative and its majority status re-
flected by the election results and certification.
Regarding points 1 7. which were the basis for its oral
motion to amend the answer, Respondent's counsel admit-
ted at the hearing that these issues had been raised in Soc-
cer I and Soccer 2 and that no new assertions were being
made which wer l different from its earlier contentions. Fur-
thermore, be: ,re ruling on the motion to amend the answer,
I recessed the hearing to study the earlier Board decisions
and concluded that the issues had been considered by the
2 7h' NorM inerican Soifcer league and Its ('onsituen Member ('Clubs.
236 NLRB 1317 (1978) and 241 NLRB 1225 (1979).
Official notice is taken of the records in those cases as the term "record"
is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regula-
tions. Series 8, as amended. See LTV Elecirosssems, Inc, 166 NLRB 938
(1967), enfd. 388 F.2d 683 (4th Cir. 1968): Golden Age Beverage Compnv,.
167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969): Inernpe (Company,
a Division of HIarris-lnterrvpe Corp. v. Penello, 269 FSupp. 573 (D.C. 'Va
196'7), Folti Corporation, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir.
1968): and Sec. 9(d) of the NLRA, as amended.
Board. No new basis for further litigation on the points was
asserted, nor was any offer of newly discovered evidence
since the earlier proceedings made. Accordingly, and to
avoid litigation on already settled issues, I denied Respon-
dent's motion. Since the hearing and receipt of briefts, I
have studied the records in Soccer I and Soccer 2 more
carefully and find that the basis for this ruling is confirmed.
I therefore adhere to it. Sumter Plywvood Corporation, 227
NI.RB 1818 11977): Detroit Pl.astic Molding Co., 228 NLRB
1030 (1977): Ocean .Systems,. Inc.. 227 NLRB 1593 (1977):
East Coast Equipment C(orporation, 229 NLRB 825 (1977):
Heavlr Lifi Services Inc., 234 NLRB 1078 (1978): HollyS'S
In., d/'hla Iloliday Inn South. 241 NLRB 235 (1979); and
see Pittsburglh Plate (;Wlls C(ompanv v. N.L.R. B. 313 U.S.
146, 162 (1941), and Rules and Regulations of the Board,
Sections 102.67(f) and 102.6 9(c).
Respondent's motion (point 9) for transfer of the hearing
to locations where the four clubs named above could more
conveniently participate was also denied. The issue offbrum
note conlvietns was raised and decided by the Board earlier,
and its decision would apply as well here. There is no merit
to the argument that these four clubs are not properly be-
lfore the Board merely because General Counsel Exhibit -
B contains no references to California Surf and because no
return receipts are attached signifying service of the com-
plaint and notice of' hearing on the other three clubs inas-
much as it is well established that service on the clubs
herein, being joint employers with the League, which
clearl> was served (and whose counsel represented Respon-
dent in all three of these Board proceedings), constituted
service on all the club members as well. Lee A. Consaul Co.,
Inc.. etc.. 192 NLRB 1130. 1145-1150 (1971); Wiley Bros.
Transit Mix, Inc.. et al., 211 NLRB 382 (1974): Edward C.
Kelley Co., In. and Shaw Mechanical Contractors, Inc., 230
NLRB 337 (1977) and, C.K. Smith & Co., Inc.. 227 NLRB
1061. 1062 (1977). There is no probative basis in the record
to even suggest that the clubs in question, given their prior
involvement in Soccer I and Soccer 2 as demonstrated by
the records therein, the League's use of the same law firm in
these cases as its representative, and the well-publicized na-
ture of this litigation, did not have notice and an opportuni-
ty to participate in the proceedings. In fact, the main issue
in this proceeding was severed from the earlier Soccer 2
case wherein all four of these clubs appear on General
('ounsel's service sheet, so that it is reasonable to conclude
their actual awareness of the instant matters, as well as
legal service.
Respondent's point 10. as one observes the argument as
first raised in Soccer I and reappearing in Soccer 2 and
continued in this case, is not persuasive. The argument is
presented that club membership is a dynamic, fluid charac-
teristic of the League because clubs are added, dropped,
sold to new purchasers, relocated, or moved to C'anada.
Allegations are then tendered that these "dramatic
changes" work a denial of due process, including in the
instant matter, because new or changed-ownership clubs
not in existence during Board proceedings are not accorded
the opportunity to participate in Board proceedings at ev-
ery juncture since their start. Thus, an opportunity to pre-
sent arguments against or in modification of the Union's
position, or the Board's proceeding, is denied the clubs to
1302
THE NORTH AMFRICAN SOCCER LEAGUE
their legal prejudice. To put this contention, which runs like
a thread throughout the cases, into its proper perspective
immediately, one need only note that the League was com-
posed of 18 clubs when the representation petition was
filed, 22 clubs at the time of the election. 22 when Soccer 2
proceedings were underway, and 22 at the inception of this
case: these 22 clubs appear from the record to bear the
same names at the times of the election, Soccer 2. and this
case.
This hardly evidences a dramatic change. More impor-
tantly, nowhere in the records of these cases does it appear
that a single club, whenever it may have joined Respondent
or relocated or changed ownership, sought to present an
argument independently of Respondent's efforts or sought
to intervene independently. Respondent is also arguing that
these changes work a suspension in its duty to bargain. but
such a view also lacks merit. Even assuming an increase in
employees resulting from an increase in the number of new
clubs, such would alone not suspend Respondent's duty to
bargain any more than would a decrease in unit size. Sierra
Development Company d/h/a Club Col-Neva, 231 NLRB 22
(1977). This is especially true during the certification year.
when the Union's majority status cannot be questioned.
Rav Brooks v. N.L.R.B., 348 U.S. 96 (1954); Wellington
Hall Nursing Home. Inc., 240 NLRB 639 (1979). Respon-
dent's point I 11 is linked with point 10, the question of fluc-
tuating unit composition, when it protests that the General
Counsel has refused to name the clubs which are parties to
the proceedings. The record demonstrates that the clubs
have been named, at least during four stages in this litiga-
tion, viz, the times of the filing of the petition. the election.
Soccer 2, and the instant case, and, while there may have
been changes (and as Respondent not unreasonably sug-
gests, there will be future changes) in unit composition.
there clearly is considerably more than a current substantial
nucleus of clubs forming a stable base for a bargaining rela-
tionship. Certainly there is no basis or merit to indefinite
postponements in bargaining by convening a new hearing
automatically upon a change in ownership or location or
whenever a new club joins the League and, in effect, putting
the bargaining unit description and thereby the parties' bar-
gaining obligations back to step I and up in the air. Such a
course would clearly frustrate employees' desire for collec-
tive bargaining representation as expressed in a Board elec-
tion and seriously detract from the Act's purpose to estab-
lish stability in labor relations. Respondent's position in this
case to such effect is therefore rejected. as was the result of
the Board's disposition of Respondent's argument to this
effect in Soccer I and Soccer 2. 1 find the Board's answer to
Respondent's question as to who is included in the unit as a
joint employer with the League equally applicable to the
instant case. vi:, "clubs which had become members of the
[League] since the inception of the representation proceed-
ings" (Soccer 2, supra, p. 5). This result was reached upon a
full record before the Board in Soccer I and Soccer 2, which
was the basis for the finding of joint employer, a finding
which continues to fully warrant the General Counsel's pro-
ceeding against Respondent, not, as Respondent puts it, as
a result of an 'alchemy" of words but rather on the basis of
record evidence reflecting fully the Leaques's overriding
control and influence over all its member clubs (Soccer 1.
supra, pp. 8 and 15).
11. TIHE BUSINESS OF THE RFSPONI)ENT ANI) THE LABOR
OR(iANIZATION INVO.VDI)
The complaint alleges that Respondent is a nonprofit as-
sociation composed of professional soccer teams as listed in
(G.C. Exhibit -D, appendix A,4 being teams which are or
have been operating throughout the United States and Can-
ada and which engage primarily in the business of promot-
ing and exhibiting professional soccer contests for viewing
by the general public. It is alleged that said clubs annually
derive gross revenues in excess of $500,000. and purchase
and cause to be transported in interstate commerce goods
and materials valued in excess of $50,000. Further, it is
alleged in the complaint that Respondent, and its constitu-
ent member clubs, excluding Canadian constituent member
clubs, constitutes a single employer for the purpose of col-
lective bargaining. Respondent by answer admitted to the
dollar volumes of business derived by the clubs listed in
appendix A but denied their status as a single employer
with the League. That finding was made by the Board in
the prior cases, which found that the Board had jurisdiction
over Respondent based upon a joint employer determina-
tion and the admitted figures reflecting the business rev-
enues and expenses for Respondent, being the same figures
presented here. In view thereof, I find Respondent herein is.
and has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act. Soccer 2, supra, slip opinion page 7. The
Union is concededly a labor organization within the mean-
ing of Section 2(5) of the Act.
II1. THE UNFAIR L.ABOR PRACTICES
A. The Agen' Status of Phil Woosnam
I find that Woosnam, the admitted commissioner of the
League, has been, and is now an agent of Respondent, act-
ing on its behalf, as alleged in the complaint. This finding is
based upon the records in Soccer I and Soccer 2, and the
instant proceeding, demonstrating Woosnam's substantial.
express, and implied authority to act on behalf of and to
bind the clubs and League in wide-ranging areas of Re-
spondent's activities, including the areas of employment
conditions of the soccer players, preparation of the game
schedule, employment and training of referees and lines-
men, deciding game appeals with finality, negotiation of
television contracts the revenues from which are shared
Appendix A lists the members as follows:
Atlanta (hiefs
Chicago Sting
Dallas Tornado
Detroit Express
Ft Lauderdale Strikers
Houston Hurricanes
Los Angeles Aztecs
Memphis Rogues
Minnesota Kicks
New England Tea Men
New York Cosmos
Oakland Stompers
(California Surf, as noted aove,
does not appear on the
exhibit )
Philadelphia Fur)
Portland Timbers
Rochester Laners
San Diego Sockers
San Jose Earthquakes
Seattle Sounders
Tampa Bay Rowdies
Tulsa Roughnecks
Washington Diplomats
1303
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
equally by the clubs, suspensions, and fines, including the
evaluation of conduct warranting such League action. In
addition, the Board also found the commissioner has au-
thority to fine or suspend clubs, club officials, and players
for rule violations and is empowered to take action to pre-
vent or discourage activity by any person affiliated with the
League contrary to the best interests of the League or the
sport. Soccer 2, supra, page 5. He administers the waiver
system and can require clubs to provide information in con-
nection with requests for waivers, which he has authority to
disapprove if in his judgment the action is not in the best
interests of the League. He has the authority to terminate a
player's contract and has final and binding authority to de-
cide disputes between a player and his club and can ap-
prove or disapprove player-club contracts, where provide a
place for his signature. Clubs must seek approval by the
commissioner to vary terms of the standard player contract,
and nonplayer contracts also must be submitted to League
headquarters. It is clear that Woosnam is the League's chief
executive officer and highly authoritative agent, to say the
least, and I find the General Counsel's allegation in this
respect well proved by the record.
B. The Appropriate Unit
Respondent denies in its answer the complaint allegation
describing the appropriate unit. That issue however, was
bindingly determined in Soccer I and Soccer 2, absent any
newly discovered evidence or changed circumstances war-
ranting further review. The reasons for rejecting Respon-
dent's objections to the Board's representation findings and
procedures as being based upon neither new evidence nor
changed circumstances warranting further review are out-
lined, supra, under "Preliminary Resolutions." In view
thereof, I find in accordance with the Board's earlier deci-
sions that the following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act.
All professional soccer players either on loan or other-
wise employed by the North American Soccer League
and its constituent member clubs, including players on
the following eligibility lists: active, temporarily inac-
tive, disabled, 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 employed by the Toronto Blizzard, Vancou-
ver Whitecaps and Edmonton Oilers, all other employ-
ees and supervisors as defined in the Act.
C. The Status of the Union as Exclusive Bargaining
Representative
Respondent partially admits, the record fully demon-
strates, and I find that pursuant to an election conducted by
the Regional Director for Region 2 between July 27 and
August 4, 1978, a majority of employees voted in favor of
the Union, and the Union was thereafter certified, on Sep-
tember 1, 1978, as the exclusive bargaining representative
of the employees in the above-described unit. Respondent's
insertion of the word "some" before the terms "employees"
and "members" in the answer, which otherwise admits the
Union's certification, is an oblique reference to Respon-
dent's unit composition argument raised and resolved ear-
lier in this and the other cases, which can in no way be held
to affect the conceded accuracy of the results reported in
the certification set forth in Soccer I and Soccer 2. The
arguments over the legal impact which the alleged dynam-
ics in club membership have on the efficacy of the certifica-
tion have been treated by the Board as described elsewhere
in this Decision and have been found to lack merit. Because
of this and the absence of any new evidence or circum-
stances warranting a review of the Board's findings, the cer-
tification as alleged in the complaint, but only partially ad-
mitted by Respondent, is found established.
Accordingly, I find that at all times since September 1,
1978, the Union, by virtue of Section 9(a) of the Act, has
been, and is now, the exclusive representative of all employ-
ees in the above-described unit within the meaning of Sec-
tion 9(a) of the Act.
D. The Requests for Inobration
On September 12, 1979. the Union admittedly requested
by letters to the league counsel and Phil Woosnam, Respon-
dent's agent, that the Respondent supply the Union with
the following information:
1. A copy of any and all written contracts of em-
ployment between any player in the bargaining unit
and any club in the NASL [North American Soccer
League], commonly referred to as the Standard Player
Contract, in effect as of the end of the 1973 NASL
season.
2. The history from February 1, 1977, to the present
of waiver transactions, including a written report de-
scribing each waiver transaction which has taken place
during that period, the date of the waivers, the name of
the player involved, the name of the waiving team and
the claiming team if any, the type of waivers in each
case, whether the waivers were recalled, and the extent
and nature of any League action with regard to each
such waiver transaction.
3. The history from February 1, 1977, to the present
of all players placed on any NASL club's injury list, or
any other injury-related classification because of inju-
ries suffered while playing for the respective NASL
teams. As to each transaction, please indicate the date,
name of player, the name of the team, and the classifi-
cation of each player affected.
4. A copy of any and all release forms, consent
agreements, or other forms (other than the standard
player contract form) which the respective NASL
teams generally request or require players to sign in
connection with employment by or release from em-
ployment with the respective clubs.
5. A written report of the various rules and regula-
tions and procedures used by the NASL in any "draft-
ing" of college or high school soccer players in the U.S.
and/or Canada, including a list of names of players
actually "drafted" since February 1, 1977, to the pre-
sent, and an indication of whether or not such players
were actually signed to contracts with the "drafting"
1304
THE NORTH AMERICAN SOCCER LEAGUE
team or any other team in the NASL at any time sub-
sequent to being "drafted.'
6. All written data relating to player injuries sub-
mitted by the League, the member clubs, or any agents
thereof, to any other agency, including the Occupa-
tional Safety and Health Administration, or any other
state or federal agencies or outside entities.
7. A report of the extent of insurance coverage pro-
vided by the respective NASL clubs to players and/or
their families during the 1978 seasons, including the
type and extent of insurance coverage provided, the
claim experience under each category of insurance, the
overall cost to the clubs in question of each category of
insurance provided, and a description by transaction of
any claims denied by the insurance carriers and/or the
clubs providing the insurance for each category in
question.
8. A written account of all fines levied on players by
the individual clubs or by the NASL or its Commis-
sioner since February 1, 1977, including a listing of the
name of the player involved, the amount of the fine,
the manner in which it was collected, the entity levying
the fine, and a description of the alleged offense in
question.
9. A copy of any and all fine lists used by any of the
members clubs from February 1, 1977, to the present.
10. A listing by individual name and address of all
team physicians, and for each physician, a description
of his certified specialties and medical background.
II. A listing by individual name and address of all
team trainers, and for each such trainer, a description
of his educational background and trainer/medical
certification, if any.
12. A listing by each NASL team of first aid and
emergency equipment and assistance available during
games or practices played at "home." This would in-
clude information as to whether or not the team trainer
and/or team doctor is present at all practices and
games.
13. A copy of any and all television contracts in ex-
istence between the NASL and any television network.
14. A memorandum concerning any current plans
for expansion of the NASL or for the movement of any
existing franchise.
15. An account of all decisions by Commissioner
Phil Woosnam, written or otherwise, made pursuant to
his alleged role as arbitrator of disputes between play-
ers and clubs or the League that have been made since
Mr. Woosnam became Commissioner. We also request
copies of any transcripts made or correspondence in-
volved in each dispute.
16. An account of the extent of workmen's compen-
sation coverage provided by each NASL club, along
with a statement as to whether each club is self-insured
or insured through an outside company.
17. A copy of each stadium lease between each
NASL club and the stadium authority having jurisdic-
tion over the stadium in which each such club plays its
home games.
18. An accounting by each club of the benefits
(other than straight salary) provided by each player
employed during the 1978 season, including the cost of
housing. automobile use, and other benefits, and the
names of the players to whom such benefits are pro-
vided.
19. A copy of the current employment contract be-
tween the member clubs of the NASL and Commis-
sioner Phil Woosnam or between the NASL. and Mr.
Woosnam.
20. A copy of each club's current roster list, includ-
ing players either under contract to or "under control"
by each club in the NASL. including a list of the play-
ers in either category for each club.
21. A written accounting by club regarding the
number of H- I and H-2 visas applied for and received
by each club on behalf of players during the period
from January 1977, to the present, and a written ac-
counting by team of the number of allien [sic] registra-
tion cards applied for and received by each club on
behalf of players for the same period. For each visa or
card, please indicate the name of the player involved.
Furthermore, we request copies of any and all corre-
spondence from or to the U.S. Immigration Depart-
ment from or to the North American Soccer League,
and a written account of any and all "negotiations"
between the League and the Immigration Department
with regard to either the number of players from for-
eign countries permitted to play in the North Ameri-
can Soccer League or the minimum conditions of their
employment during the last two years.
The letter, signed by Edward R. Garvey, the Union's
staff director, was received in evidence as General Counsel
Exhibit 3 and included the following two paragraphs:
Obviously, it will take some time for this informa-
tion to be compiled, so we are amenable to receiving it
as it becomes available. However, copies of player con-
tracts are an immediate concern, and we urge that you
give priority to this informational demand. If neces-
sary, we can send representatives to the League office
to personally examine and copy player contracts.
While this information is being gathered and sup-
plied, we believe that collective bargaining negotia-
tions must proceed immediately. These negotiations
can be more productive if you cooperate by providing
the requested information as we proceed. If there are
costs involved in producing this information, the
Union will bear reasonable costs of reproduction. In
the meantime, we look forward to your early response
to this letter. There may be other informational re-
quests as we proceed with bargaining, but we believe
that the information requested in this letter will be suf-
ficient for most of the issues which will be raised.
Respondent's admitted reply, by a letter dated October
10, was to reject the requests for information and for the
beginning of bargaining on the ground that to do otherwise
would waive its rights to judicial review of the Board's deci-
sion in Soccer I and Soccer 2 (G.C. Exh. 4).
The issue therefore is whether Respondent was obligated
to furnish the Union with the requested 21 items of infor-
mation under Section 8(a)(5) of the Act.
The governing principles for deciding whether an em-
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer is required to furnish a union with information are
well established and need little restatement. The answer de-
pends on whether, broadly viewing the term, the informa-
tion is relevant and reasonably necessary to the union's bar-
gaining responsibilities, including precontract negotiations.
Under the settled view, it is enough that it would be prob-
able that the desired information is relevant to require its
production. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149
(1956); Acme Industrial Co., 385 U.S. 432 (1967); Curiss-
Wright Corporation, Wright Aeronautical Division, 347 F.2d
61 (3d Cir. 1965); J. 1. Case Company v. N.L.R.B., 253 F.2d
149 (7th Cir. 1958); Robert J. Weber and Richard Weber
d/bla Weber Veneer & Plywood Company, 161 NLRB 1054
(1966). A corollary is that the General Counsel need not
establish unquestionable relevancy or dispositve force
therein for negotiating issues between the parties, it being
sufficient that the information have a potential relevance.
Western Massachusetts Electric Company, 228 NLRB 607
(1977). Relevance and necessity have, in turn, been held to
depend on the "bearing of the matter sought to apparent
issues or problems in the specific case." With those criteria
in mind, the request for information is considered, keeping
in view also that matters concerning directly the negotiation
or administration of a contract are deemed "presumptively
relevant." Ibid. p. 622. Respondent offered no witnesses or
evidence to contradict the Union's case, and the following
is based upon my review of Garvey's entirely credible testi-
mony and the record as a whole.
The Request for Items 1, 3, 4, 6-12, 16-18, and 20
Player contracts, insurance, coverage, fines and fine lists,
names of physicians and trainers, listings of first aid equip-
ment, injury reports, history of injuries, release forms,
workmen's compensation records, fringe benefit details, and
employee rosters are matters prima facie well within the
realm of the employees' working conditions and obviously
relevant to the Union's bargaining responsibilities.
6 Union
staff director Garvey testified without contradiction that
player contracts are required under league rules, that all
players must sign them, and that the contracts set forth the
wages, hours, and other employment conditions governing
the players and thereby constitute the heart of a bargaining
base in negotiations, particularly for a first contract. Work-
men's compensation records, insurance coverage levels, ex-
tent of coverage, and claims experience with the various
carriers directly bear on fringe benefits, as does the infor-
mation requested on all nonsalary benefits paid to the play-
ers, such as the cost of housing, automobile use, and the
names of recipients. Regarding fines and lists, Garvey also
testified that these matters are directly tied to wages, since,
under the standard players contract and the league's consti-
tution, the member clubs are empowered to deduct these
money directly from the players' paychecks.
7 It follows that
a working knowledge of what the fines are and what the
Decision by Administrative Law Judge Charles W. Schneider. National
Foorball League Management Council and the Constituent Member Clubs of
the National Football League (JD-405-76), June 30, 1976, p. 9.
6 To the extent such documents control or establish playing conditions of
unit personnel, stadium leases are likewise in this category.
7 G.C. Exh. 5, league constitution, art. XI, sec. I 1.1, so provides.
actual imposition of fines has been would be essential to an
intelligent, informed bargaining stance on a subject of
rather substantial importance to the players' income. The
Union, Garvey testified, would surely seek to negotiate a
maximum fine list, as well as a list of offenses which could
be considered actionable. The regulation and enforcement
of player conduct on and off the playing field by the Em-
ployer seems obviously a term and condition of employ-
ment, so information concerning these subjects is clearly
relevant. Employee rosters, particularly in this case, where
the record reflects rapid and substantial departures by the
players, many of whom reside in other countries, to their
homelands upon the season's close, are of fundamental im-
portance to the Union's bargaining obligations, being the
source for identification of all the members in the bargain-
ing unit. It is also my view that in the professional sports
sector, where, as the record suggests is true here, the inci-
dence, and importance to the players' livelihoods, of serious
injury is high, the subjects of medical care delivery and
injury occurrences to the players are also well inside the
realm of daily working conditions. To carefully exercise its
duly toward unit members to insure a high standard of
medical care for Garvey unit members, Garvey testified
that the Union seeks information from Respondent con-
cerning injury reports, physicians, trainers, and first aid and
other emergency equipment available to render medical
support to bargaining-unit personnel in order to determine
what, if any, bargaining proposals it ought to prepare and
submit as influenced by its appraisal of the information.
Information concerning injury data and lists, release forms,
and the like are indispensable to intelligent formulation of
proposals on so vital a matter. Whether the quality of care
is poor, fair, good, or excellent, whether or not there is
equipment reliable and available to provide emergency
help, whether players are required to sign release forms re-
linquishing valuable legal rights in connection with playing
injuries or otherwise, and whether or not the Union can, or
should act in the health-connected matter of artificial turf
are all matters of core importance to unit personnel and
thus relevant to the Union's duties.
I therefore find that there was a duty on Respondent's
part to furnish all the above-described information.
N.L.R.B. v. Yawman & Erbe Manufacturing Company, 187
F.2d 947 (2d Cir. 1951) (information concerning current
wage rates); Whitin Machine Works, 108 NLRB 1537
(1954) enfd. 217 F.2d 593 (4th Cir. 1954), cert. denied 349
U.S. 905 (1955) (wage information and general information
related to the issues in collective bargaining); National
Football League, Decision by Administrative Law Judge
Charles W. Schneider (June 30, 1976), JD-405-76 (player
contracts); Sylvania Electric Products, Inc., 127 NLRB 924
(1960) (insurance plans); Gulf Power Company, 384 F.2d
822 (5th Cir. 1967) (safety rules and practices); National
Football League Management Council, et al., 203 NLRB 958
(1973) (artificial turf and fines found to be mandatory sub-
jects of bargaining); Fibreboard Paper Products Corp. v.
I Items 1, 3, 4, 6-12, 16- 18, and 20. The duty is not excused as to furnish-
ing player contracts merely because Garvey had seen copies of the 1978
contracts, since material portions in these documents, the players' and clubs'
names, had been deleted. Irindale Division of Lau Industries, a Division of
Philips Industries, Inc., 219 NLRB 364 (1975).
1306
THE NORTH AMERICAN SOCCER LEAGUE
N.L.R.B., 379 U.S. 203, 225 (1964) (matters affecting em-
ployee health); Axelson, Inc., subsidiary of U.S. Industries,
Inc., 234 NLRB 414 (1978) International Union of Operating
Engineers, Local No. 12, 187 NLRB 430 (1970) (release
forms); Sparks Nugget, Inc., d/b/a John Ascuoga's Nugget,
230 NLRB 275 (1977), and The Nestle Company, Inc., 238
NLRB 92 (1978) (insurance plans and claims experience);
Peerless Publications, Inc. (Pottstown Mercury), 231 NLRB
244 (1977); and Kal-Equip Company, 237 NLRB 1234
(1978) (discipline or penalty provisions); National Football
League, supra, pp. 22, 23. (names, addresses, and other data
as to club doctors and trainers).
Items 2, 5, 13-15, 19, and 21
Not as obviously within the core of daily working condi-
tions, these subjects require individual attention before con-
cluding whether or not information regarding them must be
provided.
Item 2: The record of waiver transactions
Under league rules a team is required to follow a pre-
scribed procedure when it desires to terminate, transfer, or
release a player; thus a "waiver" system emerges. The team
notifies the league office that it has placed a player on
waiver; the League in turn notifies the other clubs of the
player's availability, and they have a right to claim the
player. Occasionally, the original club, impressed by the
demand for the player as evidenced by the number of
claims, will withdraw him from waivers and possibly work
out a trade or sale of the contract. If this does not occur,
then the successfully claiming club gets the player, The
player has no choice, if he wishes to continue playing soccer
in the League, that is, but to report to that club. Garvey
testified that the Union wants to see how the system has
operated on a per player basis since 1977 in order to deter-
mine whether first contract proposals can be drawn
whereby, by comparison with National Football League
procedures, a player might be accorded the contract right to
deny a claim. It is easy to see how the issue of transfers,
tenure, assignment of a player to a club located far distant
from his former club's location, and the decisional criteria
used by the League in deciding which of one or more claim-
ing clubs is to be awarded the player goes to the heart of
many important employment conditions of the players. A
player's exposure to sudden transfer and uprooting, the
number of times he can be switched figuratively from his
"work" in one employer location to work in another, with
all that such a move entails for him financially and gener-
ally, whether his tenure can be made to count as protection
against unwanted transfers, and whether possible arbitrari-
ness in the administration of the waiver system can be
eradicated to the improvement of player's working condi-
tions are only a few potentially significant and relevant
areas for the Union's proper concern.
Item 5. Draft procedures
Under present procedures clubs acquire players through
an annual common draft of amateur players. Once acquired
this way, a player cannot participate in league play until he
has signed a club contract approved by the league commis-
sioner. Upon approval, the player is bound to that club for
the contract's duration, plus an additional term of up to 2
years if the club exercises its "option." Garvey testified that
the Union needs to know whether teams are drafting (and
thereby tying up) players but not signing them until needed,
a practice known as "stashing"; how long a team has exclu-
sive rights to a draftee, because this also affects his avail-
ability for actual employment and because a player may
leave the country to play elsewhere and return only to find
that he cannot freely choose another club because he is still
in a draftee status and assigned to one club. The subject,
then, bears on immediacy of employment, unit composition
and size, and player mobility, all matters directly affecting
employment.
Item 13: Television contracts
Garvey testified that the Union needs to know how tele-
vision contracts affect players' working conditions, for ex-
ample, whether pursuant to these agreements plays may not
be stopped in times of player injuries, but rather only dur-
ing commercials. He cited a case of a serious injury to a
player carried off the field by players as the game contin-
ued, causing the player's paralysis. He described the
Union's concern for the economic rights of players to share
in income from cable television rebroadcasts of soccer
games on a "repeat" basis. Garvey testified that the Union
did not need to see the amount of money flowing to the
League or clubs, the emphasis being on how the player is
used. The record shows that the Union's concern also goes
to pre- and postgame interviews, how they are conducted,
whether they are required, and finally, in general, to what
extent the League is committing players to the control of
others outside the League in the television industry. Given
the broadcasting industry's increasing presence in today's
high level of sports activities, the close impact of the one on
the other, and thereby on players' conditions of employ-
ment, is readily apparent.
Item 14. Plans for league expansion or franchise
movement
Changes in the unit by expansion or internal movement
of franchises involve wholesale transfers of player personnel
with concomitant repercussions on the players' working
conditions too natural and substantial to require lengthy
comment. An example of this impact arose when players in
the past year moved to California only to learn that the
Oakland Stompers team on which they were to play had
been sold and that the franchise had been moved to Can-
ada. Garvey testified that there are restrictions on the num-
ber of Americans who can work in Canada and that this
limitation impacts on those players and, in fact, can result
in their loss of employment. Information on league expan-
sion is necessary to formulate proposals on the matter of
expansion teams being "stocked" by players on existing
teams through expansion drafts, a procedure which effects
transfers of players and thereby, like transfer of franchises,
affects their working environment.
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Item 15: Copies of commissioner decisions and records in
arbitration cases
The record demonstrates that these decisions and records
of the proceedings leading to the commissioner's conclu-
sions touch the players in many areas of their work. Em-
powered as he is by the player contract, league constitution,
and regulations to do so, the record shows that the commis-
sioner renders decisions which, so far as the players are
concerned, are tantamount to a common law prescribing
their conduct, and regulating their employment opportuni-
ties, their income, and their daily regimen. The Union, in
order to achieve first-contract grievance procedures effec-
tive to the tasks ahead, including processing of grievances,
seeks the information to represent employees in disputes
before the commissioner a task clearly facilitated by, if
not largely dependent upon, a knowledge of league prec-
edent set forth in the commissioner's rulings.
Item 19: The league-commissioner contract
The commissioner's powers to fine or suspend players, to
disapprove player-club contracts and arbitrate all disputes
involving them, to approve trades or waivers, and to deter-
mine compensation in playoff games combine to create a
powerful, even transcending, figure looming over the entire
employment context within which the players perform. The
nature, limits, and details of his authority as set forth in the
contract are therefore particularly germane to performance
of the Union's representational duties on behalf of unit per-
sonnel.
Item 21: Visas and related data
The record shows that a large percentage of the player
work force is drawn from foreign countries. This fact means
that these players need to obtain temporary work visas
through club auspices in order to gain entry to the United
States and play soccer professionally. The League deals
with the Department of Labor, according to Garvey's testi-
mony, as to an allocation of visa slots to be accorded such
players. Garvey testified that the Union seeks to learn from
the requested information how large the unit will be insofar
as its size is affected by such incoming players, who they
are, and how long they will be in the United States. The
type of benefits-whether, for example, short or long term
economic packages that should be proposed, viz, higher
wages versus larger pension benefits-and the nature of
conditions placed upon such employees due to their pres-
ence here in a visa status are all employment-connected
areas of the Union's concern for use in formulating first-
contract proposals.
Based upon the close bearing all these items have to sub-
stantial player working conditions, I find that the record
establishes that the information sought, as described by
items 2, 5, 13-15, 19, and 21, is relevant and necessary to
the Union's bargaining responsibilities. The Shaw College at
Detroit, Inc., 232 NLRB 191 (1977); Western Massachusetts
Electric Co., supra; Florida Steel Corporation, 235 NLRB
941 (1978); Mackey v. National Football League, 543 F.2d
606 (1976). (8th Cir. 1976); Smith v. Pro-Football, 420 F.
Supp, 738 (D.D.C. 1976); Reynolds v. National Football
League, 584 F.2d 280 (8th Cir. 1978); National Football
League Management Council, supra, pp. 9, 10; Curtiss-
Wright Corp., supra, L. E. Davis, d/b/a Holiday Inn of Ben-
ton 237 NLRB 1042 (1978) and Dynamic Machine Co., 221
NLRB 1140 (1975).
I find no merit to the defenses raised by Respondent for
its refusal to furnish the information. The fact that there is
pending litigation in the refusal-to-bargain Soccer 2 case
clearly does not suspend Respondent's bargaining obliga-
tion or the exercise of the Union's continuing right on be-
half of employees to seek information necessary for intelli-
gent bargaining. Montgomery Ward & Co., Incorporation,
228 NLRB 1330 (11977). There is also no merit to Respon-
dent's contention that the Union could secure the informa-
tion on its own, as such a possibilily has been held no ex-
cuse for an employer's refusal to provide it. Wellington
Home, supra, p. 6 The Kroger Company, 226 NLRB 512,
513 (1976). Nor would the fact that some of the information
relates to personnel outside the bargaining unit relieve Re-
spondent of its duty. Temple-Eastex, Inc., etc., 228 NLRB
203 (1977). Confidentiality, a factor raised and in no way
addressed by proof from Respondent, would, of course, be
no defense. The Item Company, 220 F.2d 956 (5th Cir.
1955); Boston Herald-Traveler Corporation, 223 F.2d 58 (Ist
Cir. 1955); BFR Broadcasting, Corporation db/a Radio
Station WLOL 181 NLRB 560 (1970). Finally, Respon-
dent's blanket assertion that the production of this informa-
tion would be unduly burdensome on it also lacks merit. In
the first place, Respondent's first written reply to the Union
setting forth the reason it would not comply with the
Union's request asserted only that Respondent chose to
avoid waiving its rights in Soccer 2. Thus, its present pos-
ture seems a thinly disguised after-the-fact technical posi-
tion or mere contrivance. In the second place, the Union
expressly communicated to Respondent in its letter seeking
bargaining sessions and the information needed therefor a
willingness to pay reasonable costs associated with its pro-
duction, thereby considerably lessening any burden on Re-
spondent. Respondent offered no proof whatever at the
hearing to support its allegation of burdensomeness, a de-
fense therefore unestablished in the record and rejected.
J. . Case Co. v. N.L.R.B.. supra.
I conclude accordingly, upon the entire record, that Re-
spondent, by refusing to supply the requested information,
has engaged in unfair labor practices violating Section
8(a)(5) and, derivatively, (1) of the Act, as alleged by the
General Counsel.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The North American Soccer League and Its Constit-
utent Member Clubs, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The North American Soccer League Players Associ-
ation is a labor organization within the meaning of Section
2(5) of the Act.
3. All professional soccer players either on loan or other-
wise employed by The North American Soccer League and
Its Constituent Member Clubs, including players on the fol-
lowing eligibility lists: active, temporarily inactive, dis-
1308
THE. NORTH AMERICAN SOCCER L.EAGUE
abled, suspended, ineligible, and military, and excluding all
officials of the North American Soccer League, all manage-
rial or executive personnel of the North American Soccer
League and its member clubs. all players employed by the
Toronto Blizzard. Vancouver Whitecaps, and Edmonton
Oilers, 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 9(b) of
the Act.
4. Since September 1, 1978. the above-named labor or-
ganization has been and now is the certified and exclusive
representative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain with the Union
and supply it pertinent information concerning bargaining-
unit employees on and after September 12. 1978, Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing. employees in the exercise of
the rights guaranteed them in Section 7 of the Act and
thereby has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)( 1 ) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Remedy
I shall recommend that Respondent cease and desist
from the unfair labor practices found and that it take affir-
mative action designed to effectuate the policies of the Act.
It has been found that Respondent refused to bargain
with the Union. in violation of Section 8(a)(5) and () of the
Act, by failing and refusing to supply the Union with infor-
mation.
I will therefore recommend that it furnish the Union the
requested data and. upon request, bargain with it concern-
ing wages, hours, and other terms and conditions of em-
ployment and if an agreement is reached, to sign same.
ORDER9
The Respondent, The North American Soccer League
and Its Constituent Member Clubs, its officers, agents. suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with or supply relevant informa-
tion to The North American Soccer League Players Associ-
ation, as the representative of its employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
I In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
2. Take the tbllowing affirmative action which is deemed
necessary to effectuate the policies of the Act.
(a) Upon request, bargain with and supply all requested
relevant information concerning bargaining-unit employees
to The North American Soccer League Players Association.
as the exclusive representative of the employees in the
ahove-described appropriate unit, and if an agreement is
reached. sign same.
lb) Mail to all players in the collective-bargaining unit
copies of the attached notice marked "Appendix." Copies
of said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent's rep-
resentative, shall be mailed by Respondent immediately
upon receipt thereof.
(c) NotifL the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
0 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 Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States ('ourt of Appeals Enforcing an Order of the Na-
tional abor Relations Board"
APPENDIX
NoIncE To EMPI.OYEES
POSTFID BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE uWLI. bargain with The North American Soccer
League Players Association, as the representative of
our employees in the appropriate unit described below.
and if an agreement is reached, sign same.
All professional soccer players either on loan or oth-
erwise employed by The North American Soccer
League and Its Constituent Member Clubs, includ-
ing temporary inactive, disabled, suspended, ineligi-
ble, and military: excluding all officials of The North
American Soccer League. all managerial or execu-
tive personnel of The North American Soccer
League and its member clubs. all players employed
by the Toronto Blizzard. Vancouver Whitecaps and
Edmonton Oilers, all other employees, and supervi-
sors as defined in the Act.
WE wuit i., upon request, supply the above-named la-
bor organization information in the following catego-
ries, which information has been found by the Na-
tional Labor Relations Board to be relevant and
necessary to collective bargaining:
1. Copies of player contracts in effect as of the
1978 season.
2. All records of waiver transactions since Feb-
ruary 1, 1977.
3. A history from February 1, 1977. to the pre-
sent of player injuries, including dates, names, team
names, and player classifications.
4. Release forms.
5. Drafting regulations.
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Injury reports issued by the League or clubs
since February 1., 1977.
7. Insurance coverage data.
8. Fines.
9. Fines lists.
10. Physicians and backgrounds.
11. Trainers and backgrounds.
12. First aid equipment.
13. Television contracts.
14. Expansion plans for the league.
15. Commissioner arbitration decisions.
16. Workmen's compensation records.
17. Stadium leases.
18. Fringe benefits.
19. Commissioner's contract.
20. Roster lists.
21. Visa records.
WE WNILL. NO 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.
THE1 NORTH AMFRI( AN SO(CCER LEA.OUE AND ITS
CONSIIUENI ME MBIER CLUBS
1310