Baltimore Blast

84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nathan Scherr, Howard Perlow, Kenneth Hesson, Harold Cohen, Victor Cohen, Robert Footlick, Robert Pickner, Stuart Weitzman, Albert Weitzman, Ronald Weitzman, and Kenneth S. Cooper d/b/a Blast Soccer Associates d/b/a Baltimore Blast and Major Indoor Soccer League Players Association, affiliated with Fed- eration of Professional Athletes, AFL-CIO. Case 5-CA-18686 June 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 26, 1988, Administrative Law Judge David S. Davidson issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. We agree with the judge that the Respondent violated Section 8(a)(5) and (1) of the Act by uni- laterally adjusting employee Resad Kunovac's grievance without honoring the Union's statutory right to be present at the settlement discussion. However, we find merit in the Respondent's excep- tion to the judge's recommendation remedy insofar as the remedy includes an automatic setting aside of the individual agreement reached between Kun- ovac and the Respondent on February 13, 1987. Although the Board customarily directs an employ- er to restore the status quo ante if it has taken uni- lateral action to an employee's detriment, we are unable in this instance to determine definitively whether the Respondent's grievance adjustment was detrimental to Kunovac in any regard. There- fore, we shall order the status quo ante restored conditioned on Kunovac's affirmative desire as ex- pressed through his collective-bargaining represent- ative.' The Respondent accordingly shall set aside the unilaterally adjusted grievance if the Union elects with Kunovac's concurrence to have previ- ous conditions restored. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law I See Postal Service, 281 NLRB 215 (1986), Dura-Vent Corp, 257 NLRB 430, 433 (1981) judge as modified below and orders that the Re- spondent, Nathan Scherr, Howard Perlow, Ken- neth Hesson, Harold Cohen, Victor Cohen, Robert Footlick, Robert Pickner, Stuart Weitzman, Albert Weitzman, Ronald Weitzman, and Kenneth S. Cooper, d/b/a Blast Soccer Associates d/b/a Balti- more Blast, Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(a) and reletter the subse- quent paragraph. 2. Insert the following as paragraph 2(a) and re- letter the subsequent paragraphs. "(a) On request by the Union with the concur- rence of Resad Kunovac, set aside the February 13, 1987 agreement which unilaterally adjusted the Kunovac grievance." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with the Major Indoor Soccer League Players Associa- tion, affiliated with Federation of Professional Ath- letes, AFL-CIO by adjusting contract grievances with individual unit employees without affording the Union the opportunity to be present at such ad- justment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request of the Union with the con- currence of Resad Kunovac, set aside the February 13, 1987 agreement which unilaterally adjusted the Kunovac grievance. NATHAN SCHERR, HOWARD PER- LOW, KENNETH HESSON, HAROLD COHEN, VICTOR COHEN, ROBERT FOOTLICK, ROBERT PICKNER, STUART WEITZMAN, ALBERT WEITZ- MAN, RONALD WEITZMAN, AND KENNETH S. COOPER D/B/A BLAST SOCCER ASSOCIATES D/B/A BALTI- MORE BLAST 289 NLRB No. 11 BLAST SOCCER ASSOCIATES 85 James P. Lewis, Esq., for the General Counsel. Adin C. Goldberg, Esq. (Spengler, Carlson, Gubar, Brodsky & Frischling), of New York, New York, for the Re- spondent. Timothy English and Peter McGee, Esq&, of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge. This case was tried at Baltimore, Maryland, on 3 September 1987. The Union filed the charge on 2 March 1987, and the Regional Director issued the complaint on 14 April 1987. The issue is whether Respondent' violated Section 8(a)(5) of the Act by settling a grievance with a member of the bargaining unit represented by the Union without giving the Union an opportunity to be present at the ad- justment of the grievance. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a partnership, operates a professional indoor soccer team at Baltimore , Maryland. In the course of its operations, it annually derives gross reve- nues in excess of $500,000 and purchases goods and ma- terials in excess of $10,000, which it causes to be trans- ported and delivered in interstate commerce . I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts At all times material the Union (MISLPA) has been the exclusive collective-bargaining representative of a unit including all soccer players under contract with the Major Indoor Soccer League, Inc. (MISL), and its member teams of which Respondent is one . The most recent collective-bargaining agreement between MISL and the Union runs from 28 March 1986 to 30 June 1989. The collective-bargaining agreement covers terms and conditions of employment of those in the unit, but also provides for individual contracts between players and management, as follows: agreements with individual Players. The MISLPA authorizes the Clubs, for the term of this agreement only, to enter into, negotiate and execute individual employment agreements. Section 2 . Right of Union to Participate: For pur- poses of this agreement, MISL Clubs and the League recognize that the MISLPA has a right to attend all individual negotiating sessions , absent an express waiver to that effect by the MISLPA. The MISLPA authorizes the Clubs for the term of this agreement only to engage in individual negotiating sessions with Players without the participation of the MISLPA. MISL Clubs agree to negotiate with the MISLPA or its agent in order to facilitate agent regulation. Section 4. Subjects for Individual Agreements: The subjects and limitations of individual agreements are described in the form attached hereto as Appendix A. Club will provide every Player or prospective player with a copy of said form during individual negotiations. Section 5. Standard Player Contract: All players shall be required to execute the MISL Standard Player Contract. Upon the completion and execu- tion of each Standard Player Contract , or amend- ments thereto, such contract or amendments, if any, and Appendix A referred to above in Section 4, shall be forwarded to the MISLPA ten (10) days after receipt by the Commissioner's Office. Section 6. Expedited Arbitration: The MISLPA shall have the right to challenge the validity of any individual contract through expedited arbitration within ten (10) days of its receipt of the individual contract in question on the following grounds: (a) Incompleteness in expression of its terms; (b) Any conflict between its terms and the Collective Bargaining Agreement between MISL and MISLPA (including attachments); (c) The Club, or a Club official, has made or agreed to make payment or convey anything of value to any firm or person for legal or represen- tational services provided to a Player in connec- tion with the negotiation of a contract between such Club and Player that is not set forth in the MISL Standard Player Agreement or attach- ments thereto. Insofar as material, Appendix A provides: FORM DESCRIBING THE SUBJECTS FOR INDIVIDUAL AGREEMENTS Article XIX Individual Negotiations Section 1 . Union 's Limited Waiver: For purposes of this agreement, MISL Clubs and the League rec- ognize that, absent an express waiver by the MISLPA, they could not negotiate or execute ' Respondent's name appears in the caption as amended at the hearing. The sole issues to be negotiated between the Club and the Player in individual negotiations are the fol- lowing: (1) His salary, additional compensation , such as signing bonuses or performance bonuses or incen- tive bonuses; (2) Lodging and/or automobile allowances; (3) Payment schedule; 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (4) Guarantee, no-cut, and no-trade provisions; (5) Educational payments; The Club cannot negotiate any benefits, terms, or other conditions of employment with individual Players which conflict in any way with (decreasing or modifying benefits) the terms of the Collective Bargaining Agreement. Pursuant to these provisions on 10 June 1983 Respond- ent entered into an individual agreement with player Mesad Kunovac for four playing seasons beginning on 1 October 1983 and ending 31 May 1987 "unless extended, terminated, or renewed as specified elsewhere in his con- tract." The agreement provides in section 6.2 that Re- spondent may terminate the agreement on written notice if the player shall at anytime among other things "fail, in the opinion of the Club's management, to exhibit suffi- cient skill or competitive ability to qualify for or contin- ue as a member of the Club's team." Among its special provisions the agreement provided that a portion of the player's salary each season was to be payable to the player's agent Branko Perovanovic. It also provided, "All monies guaranteed, provided player passes club physical each season." On 3 July 1985, pursuant to section 6.2 Respondent's executive vice president and head coach, Kenneth Cooper, notified Kunovac that Respondent did not intend to bring him back for the next soccer season. On 24 October 1985, the Union by letter to Respond- ent's counsel, Rachel Zelkind, filed a grievance on behalf of itself and Kunovac protesting the failure of Respond- ent to pay any of his guaranteed salary after 1 October 1985. By letter of 7 November 1985, Zelkind replied rais- ing procedural objections and denying that Respondent had any continuing salary obligation to Kunovac under the terms of the agreement taken as whole. On 2 December 1985 the Union and Kunovac filed a notice of appeal to George Nicolau, permanent umpire under the collective-bargaining agreement, seeking arbi- tration of the grievance. Around that time, the Union's assistant director Peter McGee and Zelkind spoke about setting up a meeting with Kunovac's agent Perovanovic to discuss settlement of the grievance, and on 5 December 1985 Perovanovic, McGee, and Zelkind met at Zelkind's office. McGee and Perovanovic proposed a settlement figure that Zelkind rejected as excessive. At that time McGee informed Zel- kind of the request for arbitration that she had not yet received. Zelkind told them that Respondent intended to raise all its procedural and substantive objections to the grievance. At the conclusion of the meeting, the parties remained interested in settlement. McGee indicated to Perovanovic and Zelkind that settlement should be pursued, and asked Perovanovic to keep him apprised. McGee left Zelkind with the understanding that she and Perovanovic should talk. About 2 weeks later, in mid-December Perovanovic again appeared in Zelkind's office with another player who was a friend of Kunovac and they discussed settle- ment of the Kunovac grievance further. Two or three days later she phoned McGee and told him of the meet- ing, indicating that she was open to further discussion of the grievance. McGee did not protest her meeting with Perovanovic or indicate a desire to be present at any future meeting between Zelkind and Perovanovic. There were no further meetings between them.2 Processing of the grievance continued. At Respond- ent's request the arbitrator heard the issues of untimeli- ness and arbitrability separately before hearing the griev- ance on its merits. On 30 May 1986 Arbitrator Nicolau issued an interim award finding that the claim of Kuno- vac and the Union was arbitrable. On 2 October 1986 the arbitrator issued a second interim award finding that the grievance and the appeal to arbitration were timely. Although neither McGee nor Zelkind participated in further settlement discussions after December 1985, Cooper had settlement discussions with Perovanovic in 1985 and 1986. In January 1987 Perovanovic met with Cooper in Bal- timore about another matter. In the course of the meet- ing he asked about Kunovac and said that they wanted to settle. Cooper asked if he was representing Kunovac, and Perovanovic answered affirmatively. He asked Pero- vanovic what he wanted to settle for and Perovanovic gave a figure of $30,000. Perovanovic indicated that he had spoken to Kunovac and his wife and that Mrs. Kun- ovac wanted Cooper to call him. Cooper eventually reached Mrs. Kunovac by telephone in Yugoslavia. He told her of his conversation with Perovanovic, and she indicated that the proposed figure was acceptable to her and her husband. Following this conversation Cooper got approval from Respondent's other owners and arranged to meet Kuno- vac on 12 February 1987 in London to complete the set- tlement. 2 Zelkmd so testified and I have credited her Initially, McGee testified that this meeting occurred before the Union appealed the grievance to arbitration and that there were no settlement discussions after the appeal was filed After Zelkind testified, McGee testified that her testimony refreshed his recollection He testified that after Zelkmd rejected the proposed set- tlement figure he told her that they would go forward with the griev- ance, while continuing to try to settle it During the discussions it became clear that an obstacle to settlement was the fact that under Kunovac's agreement there were payments due Perovanovic linked to the payments due Kunovac. According to McGee, he "left it that Mr Perovanovic was welcome to try to work out some kind of-to discuss some kind of settlement language with the Club, both on behalf of himself and on behalf of the player, and I left it with Mr Perovanovic and Ms. Zelkind that if they were able to arrive at such a settlement document , at such a settlement agreement , that that would be fine as long as the union was able to put final approval on it, since we were involved with a griev- ance " McGee also testified that in his mid -December telephone conver- sation with Zelkind he repeated that the Union would have to approve any final settlement Zelkind denied that McGee ever told her that the Union would have to approve any settlement agreement It is understandable that in the lapse of almost 2 years between the De- cember 1985 conversations and the hearing in this case, neither Zelkind nor McGee had a verbatim recollection of their December conversations. Yet, it appeared that until Zelkind testified , McGee had no recollection of conversations between them after the grievance was appealed to arbi- tration, and it is impossible to avoid the conclusion that McGee's re- freshed recollection was colored, however unconsciously , by the position taken by the Union in this case I do not credit McGee's testimony that he stated that the Union would have to approve any final settlement reached between Zelkind and Perovanovic. BLAST SOCCER ASSOCIATES 87 Sometime before Cooper 's trip, John Kerr, the Union's director, and McGee heard rumors that Perovanovic was trying to settle the grievance. On 5 February Kerr wrote Cooper that it had come to his attention that he was trying to settle the Kunovac case directly or indirectly with Kunovac and that he wanted to remind Cooper that the grievance was filed by the Union and therefore could not be settled through the player's former agent. Cooper left for London on 8 February and did not see Herr's letter until his return. In the meantime on 12 February Cooper met Kunovac in London. He gave Kunovac a draft of a proposed set- tlement agreement and arranged to meet him again the next day. The next day Kunovac arrived wih a friend to represent him and signed the agreement. The agreement captioned "Termination of Standard Player Agreement and Release," provided , among other things: 5. Player, for himself, his successors and assigns and his agents and representatives hereby remises, releases and forever discharges Team, its successors and assigns, employees, agents, attorneys, and those individuals and entities who hold partnership inter- ests in the Team from all . . . claims . . . griev- ances, arbitrable matters . . . whatsoever which Player, his assigns, representatives and agents may have, now or in the future , against Team, its succes- sors, assigns, employees, agents, attorneys and those individuals and entities who hold partnership inter- ests in the Team . . . arising out of or related to (i) the Employment Agreement , (ii) the Player's em- ployment by the Team under the Employment Agreement or otherwise, (iii) the termination of the Employment Agreement and Player 's employment thereunder, (iv) this Agreement and the formation hereof and the provisions hereof and the entering herein ... . 7. In the event that Player and/or the Team has initiated, prior to the date hereof, a grievance and/or any action in regard to the Employment Agreement or the performance thereof, that party who initiated such grievance or action immediately shall take any and all actions necessary to terminate the same and shall instruct either the MISL and/or the MISLPA, as appropriate, to terminate any grievance and/or action which such entity may have initiated and/or furthered in any capacity whatsoever in regard to (i) the Player and/or Team as appropriate, (ii) to the Employment Agreement, (iii) to the performance of the terms thereof and/or (iv) to Player's employment by the Team. In the event that Player and/or Team respectively has au- thorized or appointed the MISL and/or the MISLPA respectively to represent it or otherwise act as its agent in the above mentioned grievance and/or action, the Player and/or the Team hereby withdraws and terminates such authorization and appointment. This agreement is a bar to either the Player or the Team or anyone on their respective behalf or for their respective benefit directly or in- directly, continuing or participating in any way whatsoever in any action as mentioned above. Cooper did not respond to Kerr's 5 February letter after finding it on his return from England, but Zelkind sent the Union a copy of the termination of standard player agreement and release executed by Kunovac. On 24 February Zelkind sent the following letter to Arbitrator Nicolau: Enclosed is a copy of a writing styled "Termina- tion of Standard Player Agreement and Release" ("Termination") dated February 13, 1987, executed by Blast Soccer Associates ("BSA") and Resad Kunovac. The Termination speaks for itself, and based thereon, I formally request that you dismiss the arbitration now before you concerning perform- ance of the Standard MISL Players Agreement be- tween Mr. Kunovac and BSA, regardless of the party bringing the grievance. On even date herewith, I have sent a copy of this letter and the enclosed document to W. Buckley Briggs, Esq., appearing before you for the MISLPA. B. Discussion The General Counsel and the Union contend that Re- spondent violated Section 8(a)(5) by settling the Kuno- vac grievance without giving the Union the opportunity to be present at the adjustment. Respondent does not dispute that absent a waiver, the second proviso to Section 9(a) of the Act required it to give a representative of the Union an opportunity to be present at the adjustment of the grievance. Top Mfg. Co., 249 NLRB 424 (1980).3 Respondent contends, however, that a waiver is to be found in the collective-bargaining agreement as well as in the conduct of Union Represent- ative McGee relating to the grievance. It is well settled that the Board will not lightly infer waiver of statutory rights. Rather there must be a clear and unmistakable showing that statutory rights have been waived.4 As set forth above, the collective-bargaining agree- ment in article XIX authorized Respondent to "enter into, negotiate and execute individual employment agree- ments" (sec. 1), and "to engage in individual negotiating sessions with Players without the participation of the MISLPA" (sec. 2). The collective-bargaining agreement provided that among the issues for individual negotiation were salary and guarantees. The issue raised by the grievance filed by the Union and Kunovac is whether under the compensation sched- S There the union filed a grievance over an employee 's discharge. After an arbitrator awarded reinstatement and backpay , the employer ne- gotiated directly with the employee to settle the grievance by payment of backpay without reinstatement. The Board found that the employer vio- lated Sec. 8(aX5) of the Act by bypassing the union to negotiate directly with the employee and by settling the grievance without giving the bar- gaining representative an opportunity to be present. Here there is no con- tention that Respondent bypassed the Union by engaging in direct negoti- ations with Kunovac 4 Owens-Corning Fiberglas Corp., 282 NLRB 609 (1987) M DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ule and guarantee included in Kunovac's individual agreement Respondent had any remaining financial obli- gations to Kunovac after it notified him that it did not intend to bring him back for the 1985-1986 season. Respondent contends that because the collective-bar- gaining agreement specifically authorized individual ne- gotiations and agreement with respect to compensation and guarantees, it also authorized individual negotiations and agreement to resolve grievances arising over these issues. Although the Union's waiver of its right to par- ticipate in individual negotiations under article XIX, sec- tion 2 seems broad enough to encompass grievance nego- tiations as well as negotiations leading toward individual employment contracts, the authority to enter into indi- vidual agreements is narrower. It is directed specifically to individual employment agreements, it provides that such agreements shall be submitted to the Union, and it provides the Union with the right to challenge the valid- ity of an individual agreement on certain specified grounds, with any disputes to be resolved by arbitration. Thus, although the authorization to negotiate with play- ers individually is broad, the authority to enter into indi- vidual agreements is narrower, and the specification of individual employment agreements and the procedure for reviewing them indicates that it is not so broad as to in- clude agreements resolving disputes over termination. Indeed, those disputes typically are disputes to be re- solved through a grievance procedure, and here the grievance procedure specifically contemplates grievances filed by the Union and/or players involving the interpre- tation, application, or compliance with the terms of the collective-bargaining agreement or the standard player agreement.5 Accordingly, I conclude that the waiver contained in article XIX authorized Respondent to negotiate directly with Kunovac or his agent over settlement of the griev- ance but not to enter into an agreement adjusting the grievance without giving the Union an opportunity to be present. 6 Respondent contends that in any event the Union waived its right to be present at the adjustment of the Kunovac grievance by McGee's statements to Zelkind on 5 December 1985 and in their mid-December tele- phone conversation. Although I have credited Zelkind's version of those conversations and find that McGee gave verbal approval to continued settlement discussions between Zelkind and 6 In the arbitration proceeding over the Kunovac grievance, Respond- ent argued that the issue of compliance with the compensation and guar- antee provisions of the standard player agreement between Respondent and Kunovac was not a grievance cognizable under the collective-bar- gaining agreement. In his first interim award the arbitrator rejected that contention 6 In connection with its contractual waiver contention, Respondent argues in its brief that the 13 February 1987 termination of standard player agreement and release deals only with Kunovac's grievance and not with the Union's Respondent states, "Kunovac's settlement may, of course, have some impact on the grievance or upon any remedy, but these are matters for the arbitrator to determine Clearly, however, the 13 February 1987 agreement did not purport to affect the Union's right to pursue its grievance to arbitration ." This contention is at odds with Zel- kind's 24 February 1987 letter to the arbitrator requesting dismissal of the arbitration based on the termination agreement "regardless of the party bringing the grievance " Perovanovic, I cannot conclude that this verbal approval went beyond the Union's contractual authorization of in- dividual negotiations between players and teams without the Union's presence contained in article XIX, section 2. Respondent stresses that McGee never told Zelkind that the Union would have to be present at the adjustment or would have to approve it. However, waiver must be ex- press. What Zelkind understood was that she and Pero- vanovic should continue to talk and that Perovanovic should keep McGee informed. The first portion entailed no more than the contractual waiver. The second added nothing to it. McGee was silent about what would happen if and when negotiations produced agreement be- tween Respondent and Perovanovic. Had Zelkind gone further to state an understanding that she and Perovano- vic could adjust the grievance finally without further union involvement, and had McGee remained silent in the face of such an assertion, then waiver of any further union role might be inferred from his silence. But noth- ing was said that required McGee to speak further in order to avoid waiving what both the agreement and the statute required.7 Accordingly, I find that McGee's conduct did not waive the Union's right to be present at the adjustment of the Kunovac grievance.8 Having found no waiver by the Union of its rights, I conclude that Respondent violated Section 8(a)(5) and (1) of the Act by adjusting the grievance filed by the Union and Kunovac through the execution of the 13 February 1987 settlement agreement without honoring the Union's statutory right to be present at such adjust- ment. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. The General Counsel requests that the remedy include setting aside the grievance adjustment obtained by Re- spondent as a result of its unlawful conduct , citing Top Mfg. Co., supra, 249 NLRB at 426 . Although there was an additional violation found in Top Mfg. not present here,9 I find that the rationale advanced by the General Counsel for requiring the same remedy is persuasive. Absent setting aside the adjustment of the Kunovac grievance, there can be no effective remedy for Re- spondent's failure to afford the Union its rights . Howev- er, I reject the General Counsel 's further contention that the remedy should include a visitatonal clause. Apart from the arguments in support of the general contention that such clauses should routinely be included in all Board orders, which it should be clear by now that the Board has rejected , the General Counsel points to no Challenge-Cooke Bros, 282 NLRB 21 (1986); Borden Inc, 261 NLRB 64, 82 (1982), enfd. 711 F 2d 348 (D C Cir 1983) 8 In view of this conclusion, I find it unnecessary to consider other contentions of the Union relating to the effectiveness of McGee's con- duct as a waiver 9 I e , direct dealing with the grievant in derogation of the employer's bargaining obligation . See fn 3, above BLAST SOCCER ASSOCIATES special circumstances that would warrant such a clause in this case. CONCLUSIONS OF LAW 1. Nathan Scherr, Howard Perlow, Kenneth Hesson, Harold Cohen, Victor Cohen, Robert Footlick, Robert Pickner, Stuart Weitzman, Albert Weitzman, Ronald Weitzman, and Kenneth S. Cooper d/b/a Blast Soccer Associates d/b/a Baltimore Blast constitute an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Major Indoor Soccer League Players Association, affiliated with Federation of Professional Athletes, AFL- CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. The following employees of members of Major Indoor Soccer League, Inc., including Respondent, con- stitute a unit appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All soccer players under contract and amateur play- ers under contract including players on the active, suspended, disabled, military and voluntarily retired lists of members of the Association and of the em- ployers who have authorized said Association to bargain on their behalf, including Respondent, but excluding all other employees, veteran free agents, managerial and executive personnel, head coaches and supervisors as defined in the Act. 4. Since 26 January 1984, the Union has been and now is the exclusive bargaining representative of all employ- ees in the appropriate bargaining unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By adjusting a unit employee's grievance without giving the Union an opportunity to be present at the ad- justment, Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed10 10 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the ORDER 89 The Respondent, Nathan Scherr, Howard Perlow, Kenneth Hesson, Harold Cohen, Victor Cohen, Albert Footlick, Robert Pickner, Stuart Weitzman, Albert Weitzman, Ronald Weitzman, and Kenneth S. Cooper d/b/a Blast Soccer Associates d/b/a Baltimore Blast, Baltimore, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Continuing or giving effect to the 13 February 1987 agreement purporting to settle the grievance claims of Mesad Kunovac and Major Indoor Soccer League Players Association, affiliated with Federation of Profes- sional Athletes, AFL-CIO. (b) Adjusting bargaining unit employees' grievances without giving the Union an opportunity to be present at any such adjustment. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its facility in Baltimore, Maryland, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. " If 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 Nation- al 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."