American Basketball Assn. Players' Assn.

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Basketball Association Players ' Association and American Basketball Association. Case 2-CB-5531 December 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 29, 1974, Administrative Law Judge Max Rosenberg issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting 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 brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order.' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings ORDER the General Counsel and the Respondent which have been duly considered. Upon the entire record made in this proceeding, including my observation of the demeanor of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER The American Basketball Association, herein called the ABA, is an association of 10 employer-members, all of whom are professional basketball clubs located in various States of the United States, where it engages in the business of staging basketball contests throughout the United States. ABA exists for the purpose, in whole or in part, of bargaining collectively with several labor organizations, including the Respondent. During the annual period material to this proceeding, the employer-members of the ABA collectively derived revenues in excess of $1,000,000 from various sources including gate receipts, concession sales, and national and local radio and television contracts. In excess of $500,000 of said amount was derived from basketball games played outside the home states of the various clubs and from performances carried on na- tionwide radio and television. The employer-members of the ABA collectively, in the course of their business operations, annually expend in excess of $1,000,000 for the purchase of goods and services including basketball equipment, other supplies, and travel accommodations. In excess of $500,000 of said amount was expended for the purchase of goods and services delivered directly to the employer-members across state lines in and through interstate commerce. The complaint alleges, the answer admits, and I find that the ABA is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, American Basketball Association Players' Association, Atlanta, Georgia, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: With all par- ties represented, this proceeding was tried before me in New York, New York, on May 15, 16, 17, and 23, 1974, on a complaint filed by the General Counsel of the National Labor Relations Board and an answer interposed thereto by the American Basketball Association Players' Association, herein called the Respondent or the Players' Association ' At issue is whether Respondent violated Section 8(b)(3) of the National Labor Relations Act, as amended, by certain con- duct to be detailed hereinafter. Briefs have been received from I The complaint, which issued on March 28, 1974, is based on charges filed on January 8, 1974, and served on or about January 9, 1974 II THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent unlawfully refused to bargain with the ABA in violation of Section 8(b)(3) of the Act when, on October 10, 1973, Respondent refused to exe- cute a written agreement with the ABA embodying rates of pay, hours of employment, and other terms and conditions of employment which had been fully agreed upon between Re- spondent and the ABA on that date. For its part, Respondent asserts that there had never been a complete meeting of the minds over a labor compact between the parties. It therefore denies the commission of any labor practices proscribed by the statute. As heretofore chronicled, the ABA consists of 10 profes- sional basketball clubs located in various major cities in the United States. Each club is represented by a trustee who apparently is the principal owner of the particular basketball franchise. In collective-bargaining negotiations, the owners' interests are advanced by a negotiating committee headed by a chief negotiator of their selection. During the times material 215 NLRB No. 65 AMERICAN BASKETBALL ASSN. PLAYERS' ASSN. 281 herein, Frank M. Goldberg, the general partner and principal owner of the Denver Rockets, served as the chairman and chief negotiator for the ABA bargaining committee with of- fices in Denver, Colorado. In 1969, the players employed by the clubs formed the Players' Association under the aegis of Arlan Preblud, who served that body as its attorney and executive director, with offices also situated in Denver. Sometime thereafter, Preblud drafted Respondent's constitution and bylaws which enun- ciated, as one of the principal aims of the Players' Associa- tion, a purpose "To negotiate, execute and administer collec- tive bargaining agreements with the American Basketball Association or with individual member teams thereof respect- ing conditions of employment governing players . . ." In article V of that document, provision was made for the elec- tion of a player representative and and an alternate for each club. Article VI created a board of representatives, to consist of the officers of the Players' Association-namely, the presi- dent, vice president, secretary-treasurer, sergeant at arms, the player representatives, and the immediate past president. Ar- ticle VIII, after defining the duties of the officers, provided in section 6 thereof that: The General Counsel shall have the duty of advising the officers and the Board of Representatives on all matters of legal nature . He shall maintain the Association Office, telephone service, receptionist and provide a suitable place for transaction of Association business and where Association contracts and records of all kinds are to be filed and retained . The General Counsel together with the Chief Executive Officer shall be empowered to enter into agreements in behalf of the Association, which agreements shall be consistent with the Constitution and best interest of the Association. [Emphasis supplied.]' Following an All-Star game in January 1970, the Players' Association managed to gain recognition as the exclusive bargaining agent for the players from the ABA. In his capacity as attorney and executive director of the Respondent, Preblud participated in all of the negotiations which resulted in labor compacts between the ABA and the Players' Association and which he executed on the latter's behalf. However, Preblud testimonially acknowledged that he was never the "sole negotiator" for the Players' Associa- tion and that he uniformly obtained the prior approval of the executive committee of Respondent before executing agree- ments with the ABA. In conformity with past practice, the members of the Play- ers' Association met in early June 1973 to elect officers for the 1973-74 negotiating committee and to formulate their bargaining stance for the coming year . The new slate which was selected consisted of Zelmo Beatty , of the Utah Stars club, as president; Joe Caldwell, of the Carolina Cougars, as vice president; Bill Melchionni, of the New York Nets, as secretary-treasurer; and, Steve Jones as past president. Dur- ing the meeting, the committee hammered out their desired contractual format. By letter dated June 12, 1973 , Attorney Preblud wrote to the then-commissioner of the ABA, Robert S. Carlson, informing the latter of the names of the members 2 The last sentence of sec 6 was added by amendment dated July 23, 1970 of the newly elected Players ' Association negotiating commit- tee, and requesting that an early date be set for negotiations on a contract for the 1973-74 season. Following an exchange of correspondence between Pre- blud and Carlson, on July 23 , 1973, Preblud addressed a letter to Carlson which read: Consistent with your letter of July 19, 1973 and my letter of July 12, 1973, you are advised that the Players' As- sociation proposes the following as part of our Collective Bargaining Agreement. 1. First Class Air Travel on all flights with a duration of over one hour. 2. That there be no trades after February 1st and that there be no cuts after February 2nd. If a player is cut after that date, then his entire salary for the season will be due and payable to him after being cut. 3. That, consistent with the Uniform Player Contract and the Grievence Procedure, as outlined in the existing contract between the Association and the League, the Commissioner's role as an arbitrator should be elimi- nated and that an independent party be selected as an arbitrator, called for under the terms of the contract and the Grievance Procedure. 4. That the per diem be increased to $25.00 per day. 5. Concerning the League pension, that the age be reduced to 55, with an alternative age with a reduced benefit being 45. Further, that the pension be modified to provide that a player be paid for the total number of years in the League. 6. That the schedule be reduced to 78 games, and that there be no afternoon games following an evening game. 7. That the League Insurance Program be enlarged to include a Dental Plan for the player and his dependents. 8. That a portion of the technical fouls assessed be put into a Welfare Fund for the players. 9. That a formula be devised concerning the distribu- tion of the playoff pool, and that the players be repre- sented on the committee that determines the distribution of the pool, as well as provided that the coaches do not share in the distribution of the pool. Preblud's communication of July 23, 1973, triggered the first collective-bargaining session between the parties which was held at the American Hotel in New York City on Sep- tember 13. The Players' Association was represented by President Zelmo Beatty, Vice President Joe Caldwell, Secre- tary-Treasurer Bill Melchionni, Past President Steve Jones, and Attorney Arlan Preblud. Present on behalf of the ABA were Chief Negotiator Frank Goldberg of the Denver Rock- ets, Carl Scheer of the Carolina Cougars, and the newly appointed commissioner, Mark (Mike) Storen. During this session, the parties explored various provisions of the old agreement and reviewed Respondent's new proposals . In gen- eral, four key areas created problems-those involving the matter of first-class air travel, pensions, per diem, and the playoff pool. At the conclusion of the meeting, Goldberg announced that he planned to study the Respondent's de- mands and promised to contact Preblud on September 20. When the ABA representatives left the bargaining table, the Players' Association negotiating committee continued to dis- cuss their demands. During this colloquy, Zelmo Beatty ap- 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prised his colleagues that he and the owners of his club, the Utah Stars, were at odds over terms of his personal services contract . Opining that his employer might feel that he would utilize the current negotiations and his position as president of the Players' Association as a lever in resolving his contract difficulties with the Utah Stars, Beatty suggested that he step down as chief executive officer of his union in favor of Vice President Joe Caldwell until agreement on his personal con- tract was reached. This suggestion was adopted by his col- leagues. Pursuant to their prior arrangement , Goldberg telephoned Preblud on September 20 and, between that date and October 5, several telephonic bargaining sessions emanated from their offices in Denver. Although a consensus was reached on many contractual items, the parties remained at loggerheads over the issues of first-class air travel, increases per diem, dental care, and pensions. Goldberg and Preblud met person- ally on October 8, and the latter informed his counterpart that he had failed to sell the owners' package to the Players' Association . Goldberg announced that he was unable to make any further concessions on the foregoing economic matters. Preblud responded that his negotiating team was adamant in its position on these proposals and warned, "Frank, that is no good, you just bought yourself a problem."' Goldberg stated that "we have given you our best shop," to which Preblud retorted, "It isn't good enough." Goldberg and Preblud met again on the afternoon of October 9. However,. the negotiators failed to make any progress in resolving the thorny issues and the session abruptly terminated . Meanwhile, on either October 8 or 9, Preblud apprised the news media that the 1973-74 basketball season, which was scheduled to open on October 10, would not be launched as programmed because the players decided to engage in a strike. He also telephoned the Player Represen- tatives of certain clubs on October 9 to announce the possibil- ity of strike action. On the same date, Goldberg learned of the impending work stoppage , and so informed Storen. On the evening of October 9, Preblud left Denver for an overnight stay in Colorado Springs without advising the Play- ers' Association of his intended absence. Before he left town, however, Preblud telephoned Melchionni in New York to bring the latter up to date on the state of negotiations and the prospect of a strike. Melchionni, who was about to depart with his New York Nets' team for the season opener against the Indiana Pacers in Indianapolis , informed Preblud that he would poll his fellow players regarding the strike action. To tapoff the new season, the Indiana Pacers sponsored a, public banquet in Indianapolis on the night of October 9, and Commissioner Storen attended . Having heard from Goldberg and the press that the Players' Association had planned to strike on the following day, Storen sought out Roger Brown, the Pacer's player representative , to discuss the matter, and learned that Melchionni, a member of the Players' Associa- tion's negotiation committee, had arrived in Indianapolis and was staying at a local hotel . At the conclusion of the banquet,• Storen and Robert Bass, the chief of the League's officials, • 3 On October 7, 1974, Preblud placed a conference call to Zelmo Beatty, Bill Melchionni and Steve Jones, a substitute for Joe Caldwell who could not be reached. Preblud outlined Goldberg 's proposals to the men on the out- standing issues and the players deemed them to be totally unacceptable. Strike action was then forecast. called on Melchionni at midnight . The events which tran- spired at the nocturnal meeting , depending upon whose ver- sion one accepts, are critical to the ultimate disposition of this litigation. Commissioner Storen testified that , at approximately mid- night on October 9, he met with Melchionni and Brown. Storen embarked upon a discussion with Melchionni con- cerning the differences which existed between the parties in an attempt to reach a final agreement which might curb the strike and be acceptable to the contending factions. In his testimony, Storen acknowledged that he was aware that nei- ther Melchionni nor Brown alone possessed the authority to bind the Players' Association in negotiations, and several unsuccessful attempts were made during the course of the evening to contact Preblud .4 Storen and Melchionni, who was cognizant of the unresolved demands of the Players' Association by virtue of his being a party to the conference call on October 7 between Preblud, Beatty, and Steve Jones, thereupon proceeded to consider them. After some discus- sion, the following items were agreed on and reduced to writing by Storen. (1) The terms of this agreement will be for a period of three years. (2) The ABA agrees that all travel in excess of one hour air time will be first class. (3) Per Diem paid to the players throughout the period of this agreement will be twenty dollars per day. (4) The ABA agrees that dental coverage will be made available through the leagues medical program at the option of the players in the first year of the agreement. In the second year of this agreement the league will pay for the Dental coverage of the players, and at the same time make dependents coverage available on an optional basis. In the third year of this agreement ABA will pay for players and dependent coverage. (5) ABA & ABAPA agree to open discussions in re- gard to the Pension Plan with a reduction in the retire- ment age. Additionally ABA agrees to make the benefits of the agreed upon plan retroactive to the date of the execution of this agreement. (6) All prior argeements [entered into on July 15, 1972] remain in full force and effect, and no new items shall be brought up within the time frame of this agree- ment. (7) All the parties herewith agree that this agreement will be reduced in writing in a formal legal document within 30 days of this date.' It is Storen's further testimony that, after the foregoing provisions had been reduced to writing , Melchionni made an attempt telephonically to contact Joe Caldwell and Steve 4 In Storen's words , "It was crystal clear throughout all of the discussions that we had that neither Roger Brown or Bill Melchionni felt that they could bind the Players' Association, and that the only basis upon which they could do so, would be if Arlan Preblud told them to move forward." Storen added that "throughout the negotiations Bill Melchionni said I'm not going to be able to sign this agreement unless I talk to Arlan Preblud." 5 A par. 8 was later written into the agreement which read: "ABA agrees that any player on the active roster after February 1 shall be paid for the balance of his contract." AMERICAN BASKETBALL ASSN. PLAYERS' ASSN. 283 Jones, and Storen unsuccessfully sought to reach Preblud. About 1:30 on the morning of October 10, Melchionni got through to Caldwell. According to Storen, Melchionni point- edly reviewed the terms of the above-recited provisions with Caldwell . Caldwell expressed his displeasure with the pension provision, whereupon Storen restructured the clause to pro- vide for retroactivity as Caldwell had requested. When Melchionni ended his call to Caldwell , Melchionni an- nounced that "Joe [Caldwell] will take this deal. . . ." Once :more, the parties endeavored to reach Preblud and Steve Jones, but to no avail. They then went to bed.6 At approximately 6 a.m. on the morning of October 10, League Official Bass managed to contact Preblud on the tele- phone. Melchionni and Storen were immediately summoned. While Melchionni took the phone , Storen and Bass left the room to insure privacy, and Melchionni and Preblud engaged in a conversation for about 20 minutes . Storen then returned to the room and spoke with Preblud, during which the former outlined each item of the proposed memorandum of agree- ment to Preblud . Thereafter, a heated argument ensued be- tween the men with Preblud insisting that the agreement contain language dealing with potential television revenues. A consensus was finally reached, and the following was in- cluded in the memorandum as an addendum: In the event that ABA signs a contract for television on a national level for one million dollars in any one of the three years of this agreement ABA agrees to reopen discussions concerning the Playoff Pool and Minimum Salary. At this juncture, Storen pressed Preblud as to whether "we unequivocally have a deal." Preblud answered in the affirma- tive. Melchionni and Storen signed the agreed-upon propos- als, a copy of which Preblud received several days later. Storen suggested that a press release be immediately issued in Indianapolis announcing the consummation of the new con- tract. Preblud demurred , insisting that the release be promul- gated in Denver, and Storen concurred in this procedure. Accordingly, on the morning of October 10, both Preblud, on behalf of the Players' Association, and Goldberg, on behalf of the ABA, separately announced to the public that the dispute between the parties had been resolved and that the 1973-74 season would indeed begin as scheduled. Storen left Indianapolis on October 10 and flew to San Antonio to view the opening game between the San Antonio Spurs and the San Diego Conquistadores. When he reached the Texas airport late that afternoon, he engineered a confer- ence call with all of the franchise owners, and reviewed the terms of the agreement with them . During the conference, Storen instructed the clubs immediately to implement the first-class air travel and per diem features, a measure which the owners instituted on that date. At the conclusion of the conference, Carl Scheer, the general manager of the Carolina Cougars, reported that he had been informed that Joe Cald- well had announced to the press that day that the Cougars would not open the season on schedule because he was dissat- isfied with the terms of the agreement which had been 6 Roger Brown, who left the meeting earlier, signed the memorandum of agreement upon his departure , conditioning his acquiescence on the subse- quent approval of the agreement by Melchionni and Preblud released to the news media by Preblud and Goldberg earlier that day. When Storen returned to his offices in New York City, he telephoned Preblud on November 3 and ironed out incidental matters of language in the contract . Subsequently, Goldberg finalized the document and mailed a copy to Storen and Preblud. Storen next spoke to Preblud on November 20. It is the commissioner's testimony that he inquired of Preblud as to where the signed copies of the contract were, and Preblud replied that he had yet to show a copy of the document to Players' Association President Zelmo Beatty. Preblud as- sured Storen that, after Beatty read the agreement, it would be signed and returned to Storen. However, on November 27, Storen received the following letter from Beatty: I am writing on behalf of the American Basketball As- sociation Players' Association to inform you that Arlan 1. Preblud has been terminated as General Counsel for the Players' Association and has no authority to act for, or on behalf of, the Players' Association with respect to any matter. The Players' Association is in the process of obtaining new legal counsel . You will be notified immediately upon completion of the arrangements for new General Counsel as to who will act in that capacity for the As- sociation. With respect to the proposed Agreement presently being offered by the League, it is the Association's position that the Agreement , as drafted, is unacceptable. It is my intention to outline to you, in a letter, the Association's objections to the League's proposal This letter will be sent to you sometime within the next three weeks. It is our hope that we will renew our negotiations shortly after the All-Star break. Rounding out Storen's testimony, this was the first occasion on which he learned that the Players' Association was dissat- isfied with the agreement reached or that it had terminated the services of Preblud.' While on the witness stand , Preblud corroborated the tes- timony of Storen in salient respects regarding the events which transpired on October 10. Preblud testified that, shortly after 6 a.m. on that day, he was telephoned by League Official Bass. Melchionni entered the conversation and ad- vised Preblud that he and Roger Brown had met with Com- missioner Storen in the early hours of the morning and had signed a memorandum of agreement . Melchionni thereupon read the contents of the agreement to Preblud and assured him that the teams were "okay" with both Melchionni and Brown. At this point, Preblud inquired whether Melchionni had discussed the agreement with Joe Caldwell. According to Preblud, Melchionni "said he had contacted Mr. Caldwell that evening, and that Mr. Caldwell knew of the contract, 7 The record establishes and I find that on, November 10, 1974, Preblud received a call from Caldwell in which the latter informed Preblud that he had been removed as General Counsel and executive director of the Players' Association Approximately a week later , Beatty visited Preblud's offices and obtained the Association's files Prentiss Q Yancey, a personal ac- quaintance of Joe Caldwell , and an Atlanta, Georgia, attorney associated with the law firm of Smith, Cohen, Ringel, Kohler, Martin & Lowe, suc- ceeded to the position of General Counsel 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew of the discussions. I asked him [Melchionni] what he [Caldwell] felt about it. • He [Melchionni] said that [Caldwell] felt he could live with it." While stating that these may not have been Melchionni's exact words, Preblud noted that Melchionni had received the "acquiescence" of Cald- well.'Following this exchange, Preblud told Melchionni that there were two areas in the memorandum of agreement which he wished to explore with Storen, and Melchionni turned the phone over to Storen. Preblud proposed certain changes in the pension provision, and Storen readily agreed. Preblud then broached the matter of the television package and, after dictating the language of the clause which is set forth above, Storen gave his approval. Storen inquired whether the parties now had a full and complete agreement on all substantive terms of a labor compact, and Preblud replied that "we did have an agreement." At the conclusion of their conversation, Preblud apprised Melchionni of the changes and additions and asked whether the latter concurred in the alterations. Melchionni replied affirmatively. When the entire memoran- dum of agreement had been assembled, Preblud stated, "Billy, if you say you are satisfied with it, you say you talked to Joe Caldwell and Roger, if you are satisfied with it then sign it." Melchionni then did so. With the signing of the document, Preblud attempted to reach Caldwell and Beatty, but was unable to contact them. However, he managed to speak to several player representatives of the league's clubs and, with one exception, they manifested their approval of the negotiated contract. Preblud also recalled that, on November 3, he participated in a three-way telephone conversation with Storen and Gold- berg during which minor, technical changes in the full con- tract were made. He testified that, sometime thereafter, he engaged in a discussion with Caldwell. Caldwell complained that Preblud had failed to communicate with him concerning the latter stages of contract negotiations. Preblud remarked that he had vainly attempted to do so on more than one occasion. Caldwell then stated that he did not favor the agree- ment which had been reached between the ABA and the Players' Association, to which Preblud retorted, "Joe, you talked to Melchionni that night, you told him you agreed with it." Preblud also testified that, a few days after Novem- ber 3, Beatty received a copy of the contract. Preblud tele- phoned Beatty and learned that the agreement was unaccept- able to Beatty and he refused to execute it. Bill Melchionni testimonially reported his version of the meeting with Storen on the evening of October 9 and the morning of October 10. According to Melchionni, when the session opened, Storen was upset because he believed that Goldberg and Preblud had already agreed on a contract. Melchionni related to Storen that the failure of the parties to conclude an agreement was due to the fact that the ABA refused to meet the players' demands. Storen inquired as to the outstanding areas of disagreement. Having participated in a conference call on October 7 with Preblud, Beatty, and Steve Jones, Melchionni was well versed in the contractual differences, and he commenced to enumerate them while Storen copied them down on a piece of paper. When the list had been drawn, Melchionni advised Storen that the former "did not have the power to bind the association, and I said therefore I would have to get in touch with Mr. Preblud to find out what has happened before this, who he has talked to, before we could have an agreement." After Melchionni ad- vanced this caution concerting the limitations on his bargain- ing capacity, of which Storen was already aware, Melchionni attempted to contact Preblud and Beatty, but these endeavors proved unsuccessful. However, Melchionni did reach Joe Caldwell at 1:30 a.m. on October 10. At the outset of his testimony, Melchionni stated that the had explained to Cald- well that he had listed the players' demands for Storen and that Caldwell "objected strenuously to most of the demands at that time that myself and Mr. Storen had reached." Cald- well asked Melchionni what the latter was doing negotiating in a hotel room with Storen at 2 in the morning, and Melch- ionni stated that "I was just trying to get the games played because I thought it was important to the league that we play." With this response, Caldwell angrily instructed Melch- ionni to "get out of the room and not negotiate any more " Despite this directive by Caldwell, the known acting Chief Executive Officer of the Players' Association, Melchionni nevertheless continued to bargain with Storen. Later in his testimony, Melchionni changed tack and re- ported that he had read all of the proposals to Caldwell. When questioned as to whether Caldwell expressed his dis- pleasure over the entire proposed package presented by Storen, Melchionni initially answered in the affirmative. However, Melchionni then allowed as how Caldwell's opposi- tion was directed solely to the pension provision which, as chronicled heretofore, Storen subsequently tailored.' After his conversation with Caldwell, Melchionni continued to negotiate with Storen for a half hour. I deem it implausible that Melchionni would have persisted in his bargaining ef- forts if, in fact, Caldwell had manifested his opposition to all the terms of the memorandum of agreement which were read to him and had ordered Melchionni to cease bargaining with Storen.9 In short, I credit the testimony of Storen and find that, at the conclusion of Melchionni's telephone conversa- tion with Caldwell, Melchionni reported to Storen that the new proposals including the pension clause, met with Cald- well's complete approval and that "Joe will take this deal. 11 Melchionni further testified that, shortly after 6 a.m. on October 10, he spoke with Preblud on the telephone. Melch- ionni told Preblud that Caldwell "was dissatisfied with what had gone down in an agreement between myself and Mr. Storen." However, Melchionni acknowledged that "I myself thought that we might be able to come to an agreement." After discussing the terms of the memorandum of agreement, and after the alterations and additions were inserted in the document, Preblud assented to Melchionni's execution of the document and the latter thereupon affixed his signature to the agreement.1° In Melchionni's words, "It was my impression 8 In a taped telephone conversation between Melchionni and Attorney Yancey, the Players' Association's new counsel, which occurred on January 1, 1974, Melchionni advised Yancey that the former had "called Joe [Caldwell], uh, I couldn't get ahold of Zelmo [Beatty], I called Joe that night and I explained the thing to Joe, too, and the only thing that Joe was upset about was the language of the pension plan." 9 In his testimony, Caldwell insisted that he was opposed to Storen's proposals and had directed Melchionni to desist from negotiating with the commissioner. I do not adopt Caldwell's version, not only because his tes- timony was vague and confused, but also because he confessed that he could not remember the contents of his conversation with Melchionni on the morning of October 10 AMERICAN BASKETBALL ASSN. PLAYERS' ASSN. 285 when I signed that piece of paper that this was the start of a formal agreement that would be drawn up within thirty days." As indicated hereinabove, Preblud advised Storen on the morning of October 10 that "we unequivocally have a deal." It is undisputed and I find that, pursuant to article VIII, section 6, of the Players' Association's constitution and bylaws, the power to enter into binding agreements on behalf of that entity, including collective-bargaining contracts, is clearly vested jointly in the General Counsel of that organiza- tion and the chief executive officer. In early June 1973, the player-members of the Players' Association assembled in an- nual convention and elected Zelmo Beatty, Joe Caldwell, Bill Melchionni, and Steve Jones, as the president, vice president, secretary-treasurer, and past president, respectively, and pro- ceeded to formulate their contract demands for the 1973-74 basketball season. I find that, on July 23, 1973, Arlan Preblud, the Players' Association's General Counsel, mailed a series of nine contract proposals to the ABA com- missioner's office and requested an early collective-bargain- ing session. It is uncontroverted and I find that, on September 13, 1973, the parties conducted their first bargaining colloquy with President Beatty, as chief executive officer, and Joe Caldwell, Bill Melchionni, Steve Jones, and Attorney Preblud repre- senting the Players' Association, and Commissioner Mike Storen, Frank Goldberg, and Carl Scheer representing the League owners. After an exchange of ideas, Goldberg ar- ranged to meet with Preblud on September 20. At a caucus of the Players' Association representatives on September 13, I find that Beatty, for personal reasons, turned the reins of chief executive officer over to Joe Caldwell, the next in line in the Association's officialdom, and I find and conclude that Caldwell became and remained both the de facto and dejure chief executive officer during all times material herein. It is undenied and I find that, between September 20 and October 5, 1973, Preblud and Goldberg conducted several telephonic negotiating sessions during which the contested issues between the parties were considerably narrowed and the major center of controversy revolved around such items as first-class air travel, increased per diem payments, dental care, and pensions. On October 8, I find that the parties reached a stalemate on these issues and, on October 9, after prior consultation with the Players' Association negotiating team, Preblud announced to the press that the 1973-74 ABA professional basketball season would not open on October 10 as planned. I find that, on the evening of October 9, Commissioner Storen met with Bill Melchionni, a member of Respondent's bargaining committee and, in an effort to avert a strike and to conclude a labor agreement between the parties, Storen asked Melchionni for a list of Respondent's contractual de- mands. Melchionm, who had been privy to his negotiating committee's deliberations by virtue of his participation in a telephone conference on October 7, thereupon enumerated the demands which his organization chose to press. I further find that, at this juncture, Melchionni telephoned acting 10 I credit Preblud's testimony and find that, during this conversation, Preblud told Melchionm that "Billy, if you say you are satisfied with it [the memorandum of agreement], you say you talked to Joe Caldwell and Roger, if you are satisfied with it then sign it " Chief Executive Officer Joe Caldwell and read to him the provisions which he had listed for Storen and the concessions which Storen had made. I have heretofore credited Storen's testimony and, based thereon, as well as Melchionni's con- sistent testimonial version of the event, I find that Cald- well's only concern regarding the proposals related to the pension provision which Storen then recast in order • to bring it into line with Caldwell's objection. I find that, at the conclusion of his conversation with Melchionni, Cald- well informed Melchionni that the agreement was satis- factory to him, and that Melchionni announced to Storen that "Joe will take this deal ... " I further find that, on the morning of October 10, Melch- ionni spoke to Preblud and advised the latter that Caldwell favored the memorandum of agreement proposals which had been the only outstanding bones of contention between the parties, and that Preblud counselled Melchionni to sign the document on Caldwell's behalf. I also find that, on this occa- sion, Preblud informed Storen that the parties "unequivocally have a deal." In sum, I find that, on October 10, 1973, the ABA and the Players' Association, in conformity with article VIII, section 6 of its constitution and bylaws, had reached a complete agreement on all the terms of a labor compact. Finally, I find that, since on and after October 10, 1973, the Players' Association refused and has continued to refuse to execute the agreement which it consummated with the ABA. By the foregoing conduct, I conclude that Respondent has offended the provisions of Section 8(b)(3) of the Act." As an epilogue, this devoted basketball fan would observe that the game of the peach basket, like the game of life, frequently produces victors and losers. I suppose no one recognizes this more poignantly than the professional athlete who bravely derives his basic livelihood in the arena. But, stripped of the cogent factual and legal considerations which I feel compels the result that I have reached here, I do not view this decision as awarding an eternal championship to the ABA owners without any compensating measures for the men who comprise the Players' Association. Air travel ac- commodations comport with those demanded by the players. Per diem rates, while not measuring up to the standards initially desired by the players, were not deemed unacceptable to the Players' Association, nor was the dental program. Moreover, the Players' Association's pension plan and play- off pool and minimum salary demands have not received a lasting, negative "quick whistle" in light of the clear contrac- tual understanding that the lowering of the retirement age would be renegotiable at any time with added benefits re- troactive to July 14, 1973, and that the playoff pool and minimum salary scales would be subject to reconsideration. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Employers' operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among 11 See General Teamsters, Chauffeurs and Helpers Local 249 (V & M. Manufacturing Company), 168 NLRB 389 (1967) 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having been found that Respondent has violated Section 8(b)(3) of the Act, I will order that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have heretofore found that, on October 10, 1973, the parties reached complete agreement on rates of pay and other terms and conditions of employment and that Respondent thereafter repudiated said agreement and refused to execute a written contract embody- ing such terms and conditions. I shall therefore order that Respondent execute such compact, which shall be effective retroactive to July 15, 1973, and extend to July 14, 1976. CONCLUSIONS OF LAW 1 The ABA is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. All professional basketball players employed by the em- ployer-members of the American Basketball Association, ex- clusive of all other employees and all supervisors as defined in Section 2(11), constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(c) of the Act. 4. At all times material herein, Respondent has been and remains the exclusive representative of all employees in the aforesaid appropriate unit for-the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing, on October 10, 1973, to execute a contract embodying the agreement reached by the parties on that date, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER12 Respondent, the American Basketball Association Players' Association, Atlanta, Georgia, its officers, agents, and re- presentatives, shall: 1. Cease and desist from refusing, upon request, to execute a contract embodying the agreement reached by it with the 12 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 American Basketball Association on October 10, 1973, con- cerning rates of pay, hours of employment, or other terms and conditions of employment covering all professional bas- ketball players employed by the employer-members of the American Basketball Association, excluding all other em- ployees and all supervisors as defined in the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act. (a) Upon request, execute a contract embodying the agree- ment reached on October 10, 1973, with the American Bas- ketball Association. (b) Post at its business offices in Atlanta, Georgia, or at appropriate places elsewhere, copies of the attached notice marked "Appendix."" Copies of said notice, on forms to be provided by the Regional Director for Region 2, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish the Regional Director for Region 2 with signed copies of the attached notice for posting by the employer- members of the American Basketball Association, if they so desire, at their places of business in areas where notices to employees are customarily posted. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith. 13 In the event that the Board's 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request by the American Basketball Association , sign a contract containing the terms of our agreement reached on October 10, 1973, concerning the rates of pay, hours of employment, and other terms and conditions of employment of the employees in the fol- lowing bargaining unit. All professional basketball players employed by the employer-members of the American Basketball As- sociation, excluding all other employees and all super- visors as defined in the National Labor Relations Act, as amended. AMERICAN BASKETBALL ASSOCIATION PLAYERS' ASSOCIATION