Seattle Seahawks

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 627 (N.L.R.B. 1991)

627
304 NLRB No. 78
SEATTLE SEAHAWKS
1 The Respondent excepts to the judge’s use of the quarterly method of
computing backpay prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
We find no merit to that exception. In any event, the Board in the underlying
unfair labor practice proceeding ordered that backpay be computed by the
Woolworth method, and its Order was enforced by the court of appeals. Seattle
Seahawks, 292 NLRB 899, 932 (1989), enfd. mem. 888 F.2d 125 (2d Cir.
1989).
2 The judge did not have to decide whether to accept the General Counsel’s
estimate, or that of the Respondent, for McCullum’s earnings from personal
appearances. We accept the General Counsel’s, which in any event is only
about 4 percent larger than the Respondent’s, and thus can hardly be said to
be unreasonable.
3 Member Raudabaugh would adopt the judge’s finding that McCullum’s
earnings from playoff games in the first quarter of 1983 should be counted
as interim earnings and deducted from his backpay award. Unlike the majority,
Member Raudabaugh agrees with the judge that the fact that McCullum’s 1982
season with the Vikings was prolonged past that of the Seahawks is no reason
to exclude any of his earnings with the Vikings from interim earnings.
4 In adopting the judge’s finding that McCullum abandoned his search for
comparable interim employment in 1985, we find it unnecessary to decide
whether the judge correctly analyzed the Board’s decisions in American Bot-
tling Co., 116 NLRB 1303, 1307 (1956), and Arlington Hotel Co., 287 NLRB
851, 853 (1987), enf. denied 876 F.2d 678 (8th Cir. 1989), on remand 297
NLRB 436 (1989). A finding of abandonment is warranted by both of those
authorities.
5 Walsh testified that most of his efforts were made by telephone; thus, there
were few records that could have established the dates of his contacts with
greater accuracy.
Elmer Nordstrom, Managing Partner, et al. d/b/a
Seattle Seahawks and SSI, Incorporated d/b/a
Seattle Seahawks, a Successor in Interest and
National Football League Players Association.
Case 19–CA–20652
August 27, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On March 20, 1991, Administrative Law Judge Wil-
liam J. Pannier III issued the attached supplemental de-
cision. The General Counsel filed exceptions and a
supporting brief. The Respondent filed cross-excep-
tions and a brief in support of cross-exceptions and in
opposition to the General Counsel’s exceptions. The
General Counsel filed a response brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions only to the extent consistent
with this Supplemental Decision and Order.
1. The discriminatee, Sam McCullum, earned
$16,000 from participating in two playoff games with
the Minnesota Vikings in the first quarter of 1983. The
judge found that McCullum’s playoff earnings con-
stituted interim earnings which should be deducted
from gross backpay for that period. We disagree.
Unlike McCullum’s 1982 team, the Vikings, Re-
spondent Seattle Seahawks did not make the playoffs
at the end of the 1982 season, and thus McCullum
would not have received income for playoff games
during that period had he not been unlawfully waived.
Because McCullum’s income from playoff games was
earned during a time in which he would not have been
working for the Respondent, that income should not be
considered interim earnings. Instead, it should be treat-
ed in the manner of earnings derived from working at
an interim job that affords an opportunity to work
more than the claimant would have worked for the dis-
criminating employer, or at times when the latter did
not have work available; such earnings are not de-
ducted from backpay. See, e.g., Lundy Packing Co.,
286 NLRB 141, 146–147 (1987) (excess overtime);
EDP Medical Computer Systems, 293 NLRB 857
(1989) (extra earnings from longer workweek); United
Growers, Inc., 59 NLRB 549, 550–551 (1944) (mon-
eys earned during periods when seasonal employer
would not have had work available).
Had he remained a member of the Seahawks,
McCullum would have received $10,000 for playing
one regular season game in the first quarter of 1983.
We also find that he would have received an additional
$3450 during that period for personal appearances.2
His gross backpay for the period is, therefore, $13,450.
Offset against that sum are McCullum’s net interim
earnings of $9143 ($10,000 for the final regular season
game which he played for the Vikings, less $857 in
expenses generated in earning that income). His net
backpay for the first quarter of 1983 thus is $4307.3
2. The judge found that McCullum abandoned his
search for interim employment commensurate with his
background and experience as a wide receiver after the
third quarter of 1984, and thus incurred a willful loss
of earnings precluding an award of backpay for the re-
mainder of the backpay period, which extended
through the end of 1985. The General Counsel has ex-
cepted to the judge’s findings in this regard. Although
we agree with the judge that McCullum is not entitled
to backpay for any part of 1985,4 we find merit in the
General Counsel’s exceptions as they pertain to the
fourth quarter of 1984, and we shall modify the
judge’s Order to provide backpay for that period.
The judge based his finding on the testimony of
McCullum’s agent, Robert Walsh. Walsh testified that,
after McCullum was released by the Minnesota Vi-
kings on May 30, 1984, he approached numerous other
National Football League teams in an attempt to secure
a position for McCullum. When pressed on cross-ex-
amination to specify how long he continued those ef-
forts, Walsh stated,
I can’t give you the date. I don’t recall. I know
that we looked through the summer of that year
and even into the fall, but I can’t remember how
long we did. I really don’t.5
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 As the judge found, giving such notice at that time was necessary to avoid
a significant delay in obtaining severance pay. According to established prac-
tice, McCullum could have revoked the notice had he received a contract offer
from an NFL team.
7 Just how many teams Walsh contacted is not reflected in the record. Walsh
specifically identified eight teams that he approached, and testified that he was
sure there were others. He also said that some of the individuals with whom
he spoke suggested other teams that might have a place for McCullum, and
that he followed up on those suggestions.
8 In this regard, we reject the judge’s suggestion that, because injuries in-
variably create opportunities for unsigned players to obtain positions in
midseason, it was incumbent on McCullum to make additional efforts to ob-
tain employment during the course of the 1984 season. As we have noted, all
the teams in the NFL already knew that McCullum was available. Moreover,
the Respondent, who has the burden of proof on this issue, made no attempt
to cross-examine Walsh concerning any efforts he may have made in response
to reports of injuries. Indeed, some of his contacts may have been made on
that basis, although he did not so testify.
9 Member Raudabaugh would affirm the judge’s finding that McCullum did
not continue his search for employment beyond the third quarter of 1984. Inso-
far as the record shows, McCullum’s agent sought employment for McCullum
during the third quarter but not during the fourth quarter. The majority be-
lieves that McCullum’s agent, having previously informed various teams of
McCullum’s availability, could sit back and wait for those teams to contact
him. However, given McCullum’s announced retirement in August 1984,
Member Raudabaugh believes that it was incumbent on McCullum or his
agent to apprise these teams that the retirement did not mean that McCullum
was no longer interested in playing professional football and that, notwith-
standing the retirement, he was still actively seeking employment as a football
player.
Thus, Walsh could not recall specifically having made
contacts on behalf of McCullum during the fourth
quarter of 1984. For that reason, and because of
Walsh’s sympathy toward McCullum, the judge found
that the Respondent had pursued this matter as far as
it could reasonably have been expected to at the hear-
ing, and had carried its burden of showing that
Walsh’s efforts to find football employment for
McCullum had ceased by the end of September 1984.
The General Counsel argues that the judge’s inter-
pretation of Walsh’s statement that he continued his ef-
forts on McCullum’s behalf ‘‘into the fall’’ as meaning
no later than September is arbitrary and unsupported.
The General Counsel also stresses that the standard
used by the Board in assaying efforts by backpay
claimants to find interim employment is that of reason-
able diligence. According to the General Counsel,
McCullum met that standard. Thus, Walsh had con-
tacted many NFL teams during the summer to inform
them of McCullum’s availability. By the General
Counsel’s lights, Walsh thereafter reasonably waited in
the hope of a break, instead of making repeated calls
to the same people, reiterating the same message. In
that sense, the General Counsel argues, McCullum was
somewhat like an employee who registers for referral
at a hiring hall: once he had made his availability
known, there was little point in repeating the effort.
We agree with the General Counsel. We find, as did
the judge, that McCullum (through Walsh) made rea-
sonably diligent efforts to find football employment
through the third quarter of 1984, and that his pro
forma announcement of retirement in a letter to the Vi-
kings did not constitute an actual withdrawal from the
professional football labor market.6 We next note that,
even if Walsh actually made no additional contacts on
McCullum’s behalf after September, that fact, by itself,
would not compel the conclusion that McCullum aban-
doned his search for football employment beginning in
October. As the Board has stated,
From the fact alone that in a given quarter a
discriminatee has made no specific job applica-
tion, it does not necessarily follow that the
discriminatee during that particular quarter has
abandoned efforts to find suitable employment
and in effect has withdrawn from the labor mar-
ket. A discriminatee who has otherwise made rea-
sonable efforts to seek out new employment is not
required in each specific quarter to repeat job ap-
plications which from her past efforts she knows
are foredoomed to futility in order to protect her
claim of backpay for that particular quarter. Rath-
er, the entire backpay period must be scrutinized
to determine whether throughout that period there
was, in the light of all surrounding circumstances,
a reasonable continuing search such as to fore-
close a finding of willful loss.
Cornwell Co., 171 NLRB 342, 343 (1968).
Applying this principle to the facts of this case, we
find, contrary to the judge, that the Respondent has not
shown that McCullum effectively removed himself
from the professional football labor market in the
fourth quarter of 1984. Thus, Walsh testified that he
had contacted numerous NFL teams on McCullum’s
behalf during the previous two quarters.7 In addition,
the record indicates that even the teams that Walsh did
not approach knew of McCullum’s availability, be-
cause when a player is released, the action is reflected
on the daily ‘‘waiver wire,’’ which goes to all NFL
teams. In these circumstances, we find that Walsh did
all that, in his judgment, could be done to market
McCullum to NFL teams for the 1984 regular season,
because all the teams were aware that McCullum was
available, and Walsh had contacted directly the teams
he thought would be most likely to offer McCullum a
position. At that point, as the General Counsel sug-
gests, it was not unreasonable for McCullum to wait
and see what might develop, at least for the remainder
of the 1984 season.8 We therefore find that
McCullum’s conduct during the fourth quarter of 1984,
viewed in the context of his earlier efforts, was con-
sistent with a reasonable continuing search for employ-
ment as a wide receiver, and we shall award him back-
pay for that period.9
In the amended backpay specification, the General
Counsel claims gross backpay from football for the
fourth quarter of 1984 amounting to $146,300 for 11
regular season games, $6000 for the wild-card game,
and $10,000 for the divisional playoff game—a total of
629SEATTLE SEAHAWKS
10 Any additional amounts due for increased severance and early retirement
pay, or for increased pension payment eligibility, shall be determined as rec-
ommended by the judge in the last paragraph of his decision.
1 292 NLRB 899.
2 The General Counsel’s unopposed motion to correct transcript is hereby
granted, as described therein.
3 I grant Respondent’s motion to strike portions of the General Counsel’s
posthearing brief to the extent that it, and the substitute appendices to it, add
evidence to that adduced prior to the close of the hearing. Since I have re-
viewed the transcript and exhibits, and rely exclusively on them in reaching
my conclusions, I see no need to address the subject further.
$162,300, offset by no interim earnings. In its
posthearing brief, the Respondent abandoned any argu-
ment against the General Counsel’s method of estimat-
ing gross backpay for 1984, and now contends only
that no backpay should be awarded for that year. That
being the case, we shall award McCullum $162,300 in
additional backpay for the fourth quarter of 1984, an
amount which, added to the award of $134,899 ap-
proved by the judge, and the $4307 we have awarded
for the first quarter of 1983, brings the total net back-
pay award to $301,506, plus interest.10
ORDER
The National Labor Relations Board orders that the
Respondent, Elmer Nordstrom, Managing Partner, et
al. d/b/a Seattle Seahawks and SSI, Incorporated d/b/a
Seattle Seahawks, a successor in interest, Seattle,
Washington, its officers, agents, successors, and as-
signs, shall make Samuel C. McCullum whole by pay-
ing him $301,506, plus interest to be computed in the
manner set forth in the Board’s Decision and Order of
February 8, 1989.
James C. Sand, for the General Counsel.
Robert A. Blackstone and James B. Noel (Davis Wright
Tremaine), of Seattle, Washington, appearing for the Re-
spondent.
Jeffrey R. Walsh (Henning, Walsh & King), of San Fran-
cisco, California, appearing for Claimant McCullum.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Seattle, Washington, on June 26 through
29 and on July 6, 1990, based on a backpay specification and
notice of hearing issued by the Regional Director for Region
19 of the National Labor Relations Board (the Board), on
April 27, 1990, and on an amended backpay specification
and notice of hearing issued by the Acting Regional Director
for Region 19 of the Board on May 18, 1990, which were,
in turn, based on a Decision and Order issued by the Board
on February 8, 1989,1 and enforced by the United States
Court of Appeals for the Second Circuit by summary order
filed on September 18, 1989. Based on the entire record,2 on
the briefs filed on behalf of the parties,3 and on my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. BACKGROUND AND ISSUES
After having been drafted in 1974 by Minnesota, wide re-
ceiver Samuel C. McCullum played for the Vikings during
that season and the following one. In 1976 he was selected
in an expansion draft by the newly formed Seattle Seahawk
franchise (Respondent), for whom he played continuously
until Tuesday, September 7, 1982, when he was waived. In
its Decision and Order, enforced by the Second Circuit Court
of Appeals, the Board affirmed the underlying conclusion of
Administrative Law Judge Bernard Ries that the waiver had
been unlawfully motivated by McCullum’s protected activity
on behalf of the National Football League Players Associa-
tion (NFLPA), the bargaining agent for those players.
Almost immediately after having been waived, McCullum
was offered an opportunity to again sign a playing contract
with Minnesota. However, he chose instead to attempt to be-
come a member of the Los Angeles Raiders, thereby effec-
tively foregoing the opportunity to be activated and paid by
the Vikings for their scheduled league opener on September
12. 1982. However, after a tryout on Friday, September 10,
1982, the Raiders decided not to offer a contract to
McCullum. Following a telephone conversation with then-
Minnesota Head Coach Bud Grant, McCullum signed two 1-
year contracts—one for the 1982 season and the other for the
1983 season—with the Vikings in time to be activated and
paid for the second scheduled regular season game. Each
contract was identical in salary to the amounts of
McCullum’s 1982 and 1982 contracts with Respondent.
Moreover, McCullum then played for Minnesota in 1982 and
1983, with the result that he suffered no loss in regular sea-
son salary during those two seasons, save for the loss of that
portion of his 1982 salary allocable to the first league game
on Sunday, September 12, 1982, played after he had been
waived by Respondent, but before he had signed with the Vi-
kings. Respondent argues that McCullum is not entitled to
backpay for that game, because his initial rejection of the Vi-
kings’ offer, in favor of attempting to become a member of
the Raiders, constituted a willful loss of earnings.
Respondent further argues that McCullum would not have
survived to become a member of its 1983 team due to a
coaching change. After the 1982 season concluded with a
losing record, Respondent contracted with Charles Robert
Knox, who became its head coach in January 1983. As de-
scribed in greater detail in section II, supra, Knox made
changes in Respondent’s playing system and some personnel
changes before the 1983 playing season commenced. Despite
these changes, the General Counsel contends that the evi-
dence is not sufficient to establish that Knox would have
waived McCullum in 1983, had the latter been a member of
the team at that time that Knox became its head coach.
On February 1, 1984, McCullum’s second 1-year contract
with Minnesota expired. Efforts were made by the Vikings
and by McCullum to negotiate a playing contract for, at
least, the 1984 season. Ultimately, they were unsuccessful
and McCullum was released by the Vikings on May 30,
1984, with the result that he became a free agent. He made
no personal efforts to sign a contract with another team, but
instead authorized his agent, Robert Walsh, to locate a team
willing to retain McCullum’s services, or at least to offer
him a tryout. Walsh testified that throughout the summer and
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
into the fall he contacted officials from a number of National
Football League (NFL) teams in an effort to accomplish one
or the other of those objectives. However, those efforts were
unsuccessful. Walsh admitted that at no point did he make
any contacts on McCullum’s behalf with teams in the United
States Football League (USFL) or in the Canadian Football
League (CFL). Walsh also admitted that no further efforts
were made by him to obtain football employment for
McCullum after the fall of 1984. However, he and
McCullum continued efforts to secure nonfootball-playing
employment for the latter. As a result, in March 1985.
McCullum secured employment as director of the traffic
safety commission of the State of Washington. In the interim,
by letter dated August 28, 1984, McCullum notified the Vi-
kings that he was retiring from, and had no intention of re-
turning to play, professional football.
The General Counsel contends that none of the events enu-
merated in the preceding paragraph served to terminate the
backpay period earlier than at the conclusion of the 1985
playing season when, concedes the General Counsel.
McCullum likely would have retired as a professional foot-
ball player. Conversely, Respondent argues that McCullum
incurred a willful loss of earnings when he failed to initiate
efforts to secure employment with other teams after his con-
tract with Minnesota had expired on February 1, 1984. Fur-
thermore, Respondent argues that McCullum’s inability to
obtain even a tryout offer, once Walsh did initiate efforts in
June 1984, demonstrates that McCullum was no longer capa-
ble of playing professional football, with the result that the
backpay period should terminate at that point. Alternatively,
Respondent contends that the backpay period should termi-
nate on August 28, 1984, when McCullum gave notice that
he was retiring from professional football. Finally, argues
Respondent, if the backpay period survived these events, the
cessation of further efforts to secure football employment for
McCullum in the fall of 1984 should constitute a willful loss
of earnings that bars backpay for the remainder of whatever
backpay period may have continued through the rest of 1984
and into 1985.
Aside from the foregoing issues, pertaining to the duration
of the backpay period and the adequacy of McCullum’s
search for interim employment, several additional issues are
posed with relation to the calculation of net backpay: wheth-
er the backpay period should be segmented into semiannual
or calendar quarterly periods, and whether certain items
should be included or excluded from gross backpay or in-
terim earnings.
For the reasons set forth post, I conclude that Respondent
has failed to satisfy its burden of establishing that McCullum
would have been cut at some point prior to completion of
the 1985 season, had he not been unlawfully waived on Sep-
tember 7, 1982, but I also conclude that McCullum incurred
a willful loss of earnings after the third calendar quarter of
1984 by discontinuing his search for interim employment as
a wide receiver.
Finally, it is undisputed that in September 1988, SSI, In-
corporated purchased all right, title, and interest in the fran-
chise for the Seattle Seahawks football team, together with
all property, equipment, player contracts, and other appur-
tenant property rights, with full knowledge of the potential
liability arising from the unlawful waiver of McCullum, and
it has continued operation of the team since that time without
interruption, with the result that it is jointly and severally lia-
ble for the amounts due as net backpay.
II. DURATION OF THE BACKPAY PERIOD
As a basic proposition, to toll the backpay period, ‘‘a full
and unconditional offer of reinstatement to the employee’s
former position is required.’’ Oil Workers v. NLRB, 547 F.2d
598, 601 fn. 3 (D.C. Cir. 1976), cert. denied 429 U.S. 1078
(1977). Yet, few general legal propositions are without limi-
tation. The above-quoted one is no exception. For example,
‘‘it is settled that the Board must consider, in computing a
backpay award. whether the employer would have work
available for the discriminatee had the unfair labor practice
not occurred.’’ (Citation omitted.) NLRB v. Mastro Plastics
Corp., 354 F.2d 170, 175 (2d Cir. 1965), cert. denied 384
U.S. 972 (1966). Here, there hardly could be a dispute re-
garding Respondent’s continued employment of wide receiv-
ers after September 7, 1982. But Respondent contends that
from 1983 onward, receivers other than McCullum would
have proven better at that position and, as a result.
McCullum would have been waived or released in favor of
them. However, it is Respondent who bears ‘‘the burden of
going forward with evidence of job availability,’’ id. at 176,
and a preponderance of the evidence does not support the
contention that McCullum would not have been retained by
Respondent as a wide receiver after the 1982 season, absent
its unlawful waiver of him on September 7, 1982.
In this regard, a most illuminating explanation regarding
player retention was provided by San Diego Charger General
Manager Bobby Beathard, who testified that,
in my experience [with] teams which I’ve been with
that have had coaching changes, the new coach . . .
evaluates the squad. . . . If there’s a question. then
they would rather have the player be beaten out by
someone new or maybe there isn’t anyone to take his
place at the time and we wait until we get somebody
else. But for the most part the coaches I’ve been around
act pretty much the game when there is a change.
This explanation was augmented by Respondent’s president
and general manager, Tom Flores, formerly a successful head
coach:
Usually when a coach comes in, the things that change
are the philosophy of the team, the philosophy of how
you’re going to structure the team, the types of players
that you’ll want, and the way you do business. Those
three things always change when a new coach comes
in. Very Rarely—unless he’s elevated within the sys-
tem. But if he’s an outsider, he brings his staff with
him, and then you will see an influx of other types of
players that he wants. And in some cases, some of his
old players will come with him because he’s more
comfortable with them and they also know the system.
They know the system, therefore he’s going to bring
the system and the philosophy with him, and he’s going
to try to bring some of those players with him that are
leaders, that are good players, even if they only have
a year or two left.
Beathard agreed that ‘‘coaches have a tendency to keep or
geek players who played for them in previous years,’’ and
631SEATTLE SEAHAWKS
4 This does not mean that they were the lone wide receivers appearing on
Respondent’s roster. As is true in every season, Respondent’s 1982 roster dis-
closes the presence, at least from time to time, of other wide receivers. How-
ever, in this proceeding, and apparently in the underlying one, the parties con-
centrated on the principal players for that position. Others were carried for
spot duty and, in some cases, because of an ability to perform in particular
situations, not necessarily related to receiving, such as on special teams.
Alan Webb, San Francisco Director of Pro Personnel, carried
this familiarity theme a step further by agreeing that coaches
‘‘[d]efinitely’’ often sign players who have played good
games against them. He illustrated that testimony with the
example of James Scott, a receiver whom the 49ers had cho-
sen to sign, in part, because ‘‘he’d had a good game against
the 49ers’’ when playing for the Chicago Bears. Indeed, Flo-
res testified that the Raiders had offered the above-mentioned
1982 tryout to McCullum on the basis of ‘‘a pretty good
game against us in 1979.’’ In fact, in Respondent’s game
against the Raiders on December 16, 1979, McCullum had
8 receptions for 173 yards and 1 touchdown.
Consequently, based on this testimony, it can be concluded
that, as a general proposition, coaches tend to seek out play-
ers whose performance is known to those coaches and, fur-
ther, to stay with veteran players until beaten out by new-
comers. Knox, in particular, was known as a coach who
‘‘liked to go to people that had gone to war with him, as
he would say.’’ In fact, he acknowledged as much:
obviously if we’ve coached a player before, he certainly
would consider additional consideration in that we
know what that player can do. We’ve coached him, and
he’s had exposure to our system and he can make the
adjustments—numbering system, for example—much
more readily and more quickly than someone else.
Of course, evaluations of particular players’ abilities vary
from coach to coach. As Webb explained succinctly, ‘‘Some-
body else may think he’s wonderful and we think he’s dete-
riorated.’’ Beathard agreed: ‘‘But with 28 teams, there’s a lot
of different evaluations of players, of each player.’’ Specifi-
cally with reference to Steve Largent—characterized in the
underlying decision as ‘‘if not a superstar, not many light
years away’’ (292 NLRB at 910)—Beathard admitted that
when evaluating his abilities while in college, ‘‘We missed
on Largent, to be honest with you.’’
All of which becomes important in assessing how
McCullum would have fared once Knox became Respond-
ent’s head coach. In the underlying decision, the Board
agreed that, on September 12, 1982, Respondent had opened
its regular season with four principal wide receivers: flankers
Largent and Byron Walker and split ends Paul Johns and
Roger Carr (292 NLRB at 916).4 Aside from Largent’s
above-described ability, the Board agreed that Johns and
Walker were young, speedy receivers who ‘‘brought promise
of future success to the team over the coming years’’ (292
NLRB at 924), with the result ‘‘that the General Counsel
would not . . . have a sufficient case’’ had Respondent’s
September 7, 1982 choice been between retaining McCullum
or retaining either Johns or Walker. (Ibid.)
But the Board concluded that Respondent had not been
confronted with that particular choice on that date. Instead,
the choice had been between McCullum and Carr, who had
been obtained by trade with the Colts on September 3,
1982—4 days before McCullum had been unlawfully waived.
More importantly, Respondent would not have been faced
even with that choice had it not been unlawfully motivated
by the intention of waiving McCullum because of the latter’s
protected activity. ‘‘Respondent simply has not shown that
the acquisition of Roger Carr on September 3 would have
occurred even in the absence of the animus . . . against
McCullum as an outspoken representative of union sentiment
on the team.’’ (at 9.) In short, the acquisition of Carr had
been an integral facet of Respondent’s unlawful plan to
waive McCullum and, absent that unlawful intention, there is
no evidence that Respondent would have acquired Carr.
Nor is there a basis for concluding that, absent the unlaw-
fully motivated waiver on September 7, 1982, McCullum
would not have completed the 1982 season with Respondent.
Certainly the latter has not contended that some lawful rea-
son arose that would have led it to waive McCullum during
the course of the 1982 season. Moreover, statistically
McCullum’s 1982 record was not that dissimilar from the
performances of Respondent’s split ends during that particu-
lar season. Thus, Johns had 15 receptions for 234 total yards.
15.6 average yards per catch, and 1 touchdown. Carr had 15
receptions for 265 total yards, 17.7 average yards per catch,
and 2 touchdowns. By contrast, playing for a different team,
with a system that was new to him—and unable to play as
many regular season games as Johns and Carr, due to the be-
lated waiver by Respondent and signing by the Vikings—
McCullum had 12 receptions for 131 total yards, 10.9 aver-
age yards per catch, and no touchdowns.
While impressive to fans and the media, statistics are not
the sole measure of the merit of a wide receiver’s ability or
performance. Virtually all of Respondent’s witnesses cau-
tioned that statistics were not necessarily a reliable criterion
of a receiver’s worth to a team. Knox, himself, explained:
And certainly being a wide receiver, there are a
number of things that you have to do other than catch
the football, catching the ball being very important to
inside, outside, deep blocking, certainly, at the point of
attack, away from the point of attack. And sometimes
statistics can be very, very misleading because every-
body wants to quote a wide receiver catches so many
passes. But what did he do on the other plays? Your
end plays 60, 65 offensive plays a game, and a guy
catches two balls a game. Does that mean that he didn’t
do anything for the 58 out of the other 60 plays?
How many time did you run the football? If you run
the football 30 percent of the time, he’s got an assign-
ment on very play, whether he’s at the point of the at-
tack or away from the point of attack. And how did he
do it? Did he get his man or did he miss his man, did
he have a missed assignment and all of these
things. . . . And he’s got a specific assignment to do,
and he either did it or he didn’t do it.
So far as the evidence discloses, McCullum displayed no
deficiency in any of these other aspects of wide receiving
during his 1982 performance for the Vikings. To the con-
trary, of that season’s performance by McCullum, then-Vi-
king Head Coach Bud Grant was quoted as having said,
‘‘Getting Sam McCullum was the best thing we could have
done. . . . Sam brings to us the kind of intelligence and ex-
perience that you must have to play the position. He also is
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a good athlete and I don’t see any diminishing of his skills
in the immediate future.’’ (292 NLRB at 915.) There is no
evidence that would support a conclusion that McCullum
would have performed less skillfully for Respondent in 1982.
Accordingly, there is no basis for concluding that he would
not have remained a wide receiver for Respondent through-
out that season.
Respondent’s principal argument is directed to the 1983
season: that McCullum would not have been capable of satis-
fying Knox’s standards for playing the wide receiving posi-
tion. However, the evidence simply does not support that ar-
gument.
When he took over as Respondent’s head coach, testified
Knox, he had, ‘‘wanted to take a look at the existing players,
take a look at the whole situation, analyze it and then make
some decisions as to what areas we needed to strengthen our
football team and how we might go about doing that,’’ feel-
ing that ‘‘we had to effect a change in the fact that we ex-
pected to win, and we wanted to win, and the coaching staff
was going to insist and demand that the player give the very,
very best that he had to give within the God-given talent that
he had.’’ Toward that end, Knox testified that he interviewed
all or almost all of the former assistant coaches, retaining
two of them, and reviewed game films from Respondent’s
1982 and 1981 seasons to ascertain ‘‘everything that was in-
volved in it that we could get off the film.’’ More specifi-
cally, he explained that while ‘‘not knowing totally what [a
particular] player had been told to do. and not knowing what
the coaching situation had been,’’ only some tentative con-
clusions could be reached. He ‘‘tried to give everybody the
benefit of the doubt,’’ and, as a result, he took no final ac-
tion based solely on film review. Rather, he ‘‘[b]asically’’
brought all of the 1982 veteran players into May minicamp
and summer training camp to give them a shot at proving
themselves. There is no basis in the record for concluding
that McCullum would not have been among them, had he not
been unlawfully waived before the preceding session had
commenced.
One course that Knox did pursue was to attempt to sign
certain veteran players who had previously played on teams
that he had coached, but who had not been members of Re-
spondent’s 1982 team. Significantly, however, prior to com-
mencement of training camp on July 20, 1983, Knox did not
sign—and, so far as the record discloses, did not attempt to
sign—veteran wide receivers who had played elsewhere for
him. As to Respondent’s veteran wide receivers, aside from
Carr—who had played for a team, the Colts, in the same di-
vision as the Buffalo team that Knox had coached from 1978
through 1982—Knox had only stale experience, at best, with
any of them. In 1976, he had coached the Rams to a 45 to
6 victory over Respondent. Although both Largent and
McCullum had been members of Respondent’s 1976 team.
Knox gave no testimony concerning his impressions, if any,
of their play in that game. Aside from that single game,
Knox had no exposure to Seattle in the intervening 7 years.
By the time that the Rams next played Respondent, Knox
had become head coach in Buffalo. And the most recent
Bills’ game with Respondent, prior to 1983, had occurred in
1977, the year before Knox became the Buffalo head coach.
As a result, so far as the evidence discloses, aside from Carr,
Knox’s initial evaluations of Respondent’s veteran wide re-
ceivers had to be based exclusively on viewing films of
them. He testified that he had been impressed with Largent’s
great talent and the way that he played the game; had felt
that Johns was a ‘‘good, solid productive football player,’’
with great speed and ability to run after catching the ball and
with real potential; and, had viewed Walker as a tall receiver
who made a lot of clutch catches and made the right deci-
sions.
However, Knox’s evaluation of Carr had been a negative
one. He testified that Carr ‘‘was a declining football player’’
who ‘‘was not the kind of football player that I wanted on
our football team.’’ Yet, as pointed out in the preceding
paragraph, there is no evidence that Knox took any action to
replace Carr by signing a veteran receiver during the late
winter, spring or early summer of 1983. So far as the evi-
dence shows, as training camp opened on July 20, 1983,
Knox was fully prepared to ‘‘got to war’’ with Carr as his
second split end and fourth principal wide receiver.
That conclusion is only fortified by examination of Re-
spondent’s choices in the 1983 college draft. Respondent se-
lected only a single wide receiver: Chris Castor. But there
is no basis for concluding that Respondent had intended that
Castor become one of its principal receivers in 1983. Knox
described him only as a receiver with ‘‘tremendous poten-
tial’’ who ‘‘was the kind of player that you would like to
develop and hope that he would come on and live up to your
expectations, that you wanted to give him an opportunity to
do that.’’ Significantly, Knox’s only general comment con-
cerning Respondent’s wide receiver corps, as it existed when
he had become head coach, was that he felt that it lacked
depth. Given that feeling and his observations concerning
Castor, the only possible conclusion is that Castor was draft-
ed with a view to the future—to seasons after the 1983
one—and not as a receiver who could play an immediate
principal role for Respondent. Indeed, there is no evidence
that he did so.
In the end, Knox did not ‘‘go to war’’ in 1983 with Carr.
However, that occurred not because of any choice by Knox.
Rather, Carr forced Respondent’s hand by refusing to report
to training camp, after having earlier refused to report for
minicamp, in an effort to extract a higher salary. When Carr
did not report on July 20, 1983, Knox testified that he had
contacted Harold Jackson on Sunday, July 24, 1983, and had
invited him to Respondent’s training camp. Thereafter, Jack-
son reported, signing a playing contract with Respondent and
remaining on Respondent’s roster for the entire 1983 season.
There is no showing that, had Respondent not unlawfully
waived him a year earlier, McCullum would have held out,
as had Carr. Asked about his evaluation of McCullum, Knox
testified that solely on the basis of his review of films from
Respondent’s 1981 games, he had not been impressed by
McCullum’s play and had felt that Respondent had not made
a mistake by waiving him. However, it has been determined
ag a matter of law that Respondent waived McCullum in
1982 not because of inadequate performance, but rather to
retaliate against him for engaging in protected activity. More-
over, McCullum played impressively for Minnesota in 1982,
as illustrated by then-Coach Grant’s above-quoted remarks.
Consequently, not only were the performances viewed by
Knox in the 1981 films relatively stale, given the fact of
McCullum’s intervening 1982 season performance, but even
if McCullum’s 1981 performance truly had left Knox
unimpressed, there is no basis for concluding that Knox
633SEATTLE SEAHAWKS
5 This was the reasoning that primarily led me to sustain the objections to
questioning of Knox concerning his opinion as to whether McCullum would
have made Respondent’s 1983 roster. Given Knox’s unfamiliarity with
McCullum’s career performance, the relative staleness of the 1981 perform-
ances in the films viewed by Knox, the fact that McCullum had performed
impressively during the intervening 1982 season, and Knox’s demonstrated un-
willingness to make player retention decisions without viewing actual perform-
ance in training camp, his opinion as to whether McCullum could have played
for Respondent in 1983 simply was neither based on his own demonstrated
standard for making such an evaluation nor, in the final analysis, was it ‘‘help-
ful’’ to determining whether or not McCullum could have succeeded in mak-
ing Respondent’s team in 1983. See Fed.R.Evid. 701 and 703. Of course, a
quite different result might have occurred had that opinion been sought after
Knox had viewed films of McCullum’s 1982 performances or, even, had he
been asked for a detailed breakdown and analysis of McCullum’s performance
characteristics, consistent with the above-quoted description of the duties
called for by the wide receiver position, rather than simply having been asked
for a generalized and conclusionary opinion based on a general viewing of un-
identified films for an undescribed and undetailed amount of time.
would not have given greater weight to the more recent im-
pressive performance of McCullum in 1982. Indeed, the fact
that Knox brought into training camp all of the 1982 veter-
ans, still willing and able to play in 1983, demonstrates that
he was not disposed to evaluate players for retention exclu-
sively on the basis of film review of their performance even
from their most recent season—an option not available to
Knox with respect to McCullum because of Respondent’s
earlier unlawful waiver of him.5
The choice of Harold Jackson as Respondent’s fourth pri-
mary wide receiver is not without additional significance. He
was considerably older than McCullum, having begun his ca-
reer in 1968. True, he had played for Knox with the Rams
and, to that extent, satisfied the above-noted coaching desire
for familiarity with the coach’s playing system. However, he
last had played for Knox in 1977. Consequently, his experi-
ence with the latter’s system was not a recent one. Moreover,
though Knox left the Rams after the 1977 season and Jack-
son had been traded to New England after that same season,
there is no evidence that Knox had ever made any particular
effort to secure Jackson’s services during succeeding seasons.
Yet, Jackson clearly became available after the 1982 season
when New England released him and, again, he became
available in the fall of 1982 when, after having signed with
San Diego on July 15, 1982, he was released by the Chargers
on September 6, 1982. But there is no evidence that Knox
attempted to sign him to play for Buffalo at either time in
1982. Of equal significance is the fact that Jackson did sign
with Minnesota on December 30, 1982, while McCullum had
been a member of the Vikings. However, the Vikings re-
leased Jackson after the 1982 season, while retaining
McCullum as a wide receiver for the 1983 season.
In the course of describing his actions after becoming Re-
spondent’s head coach, Knox specifically pointed out that
‘‘you can’t just wipe out an entire football team.’’ Although
Jackson had previously played for him, the evidence shows
no more than that Knox sought him out solely because Carr
had chosen not to report and, accordingly, a gap was created
in Respondent’s receiving corps—a gap which Jackson hap-
pened to be immediately available to plug. As set forth
above, while he felt that Carr ‘‘was not the kind of football
player that I wanted on our football team,’’ there is no evi-
dence of efforts to replace Carr before training camp and, so
far as the evidence shows, Knox had been fully prepared to
accept Carr as one of Respondent’s principal receivers during
the 1983 season. However, Carr would not have been on Re-
spondent’s 1982 roster had Respondent not formulated a plan
to waive McCullum for unlawful reasons. There is no spe-
cific evidence that Knox would have been less disposed to
‘‘go to war’’ with McCullum than he had been willing to do
with Carr. Therefore, I conclude that Respondent has failed
to meet its burden of going forward with evidence that there
would have been no position available for McCullum among
its 1983 receiving corps.
Nor will the evidence support a contrary conclusion con-
cerning the 1984 season. Jackson did not return. Consistent
with my conclusion in the immediately preceding paragraph,
nothing would have occurred during the 1983 season that
would have rendered McCullum unable to complete that sea-
son playing for Respondent, as he had with Minnesota, and
be available to play for it in 1984. Of course, had McCullum
been able to play for Respondent in 1983, he would have ac-
quired a year of playing experience under Knox’s system.
That Respondent had been in need of experienced wide re-
ceivers in 1984 was graphically shown by the fact that, de-
spite having exercised a second round draft choice for Michi-
gan State wide receiver Daryl Turner, Respondent signed 7-
year veteran wide receiver Dwight Scales. While he had
played for Knox in 1976 and 1977, with the Rams, Scales
had not played professional football in 1980 and in 1983 had
played in but seven games, catching only two passes. Asked
about his reasons for having signed Scales, Knox ultimately
conceded that Scales had been ‘‘there, prepared to play as
a backup. . . . He was just a player that we had a need for
players to fill that particular role.’’ Yet, at no point did Knox
advance any particularized testimony that could form a basis
for concluding that McCullum could not have filled that role.
As set forth in section I, supra, McCullum had been re-
leased by Minnesota on May 30, 1984. Thereafter, no other
team had been disposed to offer him so much as a tryout.
In light of these facts, Respondent argues that McCullum no
longer had been capable of playing professional football after
the 1983 season. Yet, in the context of this record, that con-
clusion is not so readily reached. In the first place, there is
no evidence that Minnesota had released McCullum because
its coaches no longer believed that he could continue playing
football. To the contrary, after the 1983 season the Vikings
had made two salary offers to McCullum and, under the
rules then governing contract offers, had McCullum accepted
the second one, Minnesota would have been obliged to exe-
cute a contract with him. So far as the evidence shows, the
Vikings were fully prepared to do so, had McCullum accept-
ed. But, he did not, holding out for a higher salary, instead.
So far as the record discloses, it had been this difference in
salary that had led Minnesota to waive him. Significantly, at
no point did Respondent contend, much less prove, that it
would have been similarly unwilling to contract with a vet-
eran wide receiver for the salary amount that McCullum had
been seeking from the Vikings in 1984.
Second, as Webb and Beathard explained, evaluations of
player capabilities vary from coach to coach and from team
to team, with the result that some organizations will choose
a player whom others feel is no longer capable of playing
the game. A clear illustration of that fact is Respondent’s
signing of Harold Jackson. He had played but a single game
since the 1981 season had concluded. Between then and July
of 1983, when he signed a contract with Respondent, Jackson
had been released by New England, signed by San Diego
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during the preseason but released before the regular season
commenced, and signed to play in a single game for Min-
nesota at the end of the 1982 season. Yet, Knox chose to
sign him as one of Respondent’s principal receivers for the
1983 season. Of course, Jackson—and Scales, as well—had
been familiar with Knox’s system when they had been signed
by Respondent. However. as pointed out above, not only
would McCullum have acquired similar experience had he
been able to play for Respondent in 1983, but his experience
under Knox’s system would have been of more recent vin-
tage than that of either Jackson or Scales.
Moreover, the testimony of Beathard quoted at the outset
of this subjection must be considered: if McCullum had been
a returning veteran in 1984, there would have been a natural
tendency for Knox to retain him until someone new could
prove a better split end and replace him. Respondent has pre-
sented no evidence that either Jackson or Scales could have
done so in 1983 and 1984, respectively. Nor, for that matter,
has it shown that Castor would have been capable of doing
so in 1984. Indeed, Respondent has provided no evidence
whatsoever that Respondent would even have signed Scales
in 1984 if there already had been a fourth veteran principal
wide receiver, along with Largent, Johns, and Walker.
In sum, despite the failure of any team to offer McCullum
even a tryout in 1984, Respondent has presented no evidence
that would provide a basis for concluding that, as a veteran
familiar with Knox’s system, McCullum would not have
been retained as a wide receiver in 1984, at least to ‘‘fill [the
backup wide receiver] role,’’ for which Knox admitted that
Respondent then needed a player. Further, there is no basis
for concluding that McCullum would not have completed the
1984 season as a member of Respondent’s wide receiving
corps. While split end Turner blossomed into Respondent’s
second leading receiver, Johns suffered a career-ending in-
jury, thereby leaving Respondent especially deficient in split
ends, McCullum’s position. Castor appears not to have de-
veloped as Knox had hoped that he would do. Scales caught
but two passes; there is no evidence that he had performed
with distinction any of the other wide receiver functions that
Knox had described, as quoted above. In contrast, there is no
particularized testimony that would show that McCullum
could not have done the latter. Consequently, there is no
basis for a conclusion that McCullum would not have played
the full 1984 season for Respondent.
Nor is there a basis for concluding that McCullum would
not have been retained for and completed the 1985 season
with Respondent. Turner had become the starting split end,
but Respondent’s receiving situation was so thin that it trad-
ed a promising young tight end for Byron Franklin, a wide
receiver drafted by Buffalo when Knox had been head coach
there. In addition, Respondent had utilized its third-round
draft choice to select Danny Greene as a wide receiver.
However, these is no basis for concluding that their presence
would likely have deprived McCullum of a place on the
1985 roster, since neither Johns nor Scales returned for that
season and Castor failed to make the team.
During the course of seasonal play, both Franklin and
rookie Greene suffered injuries. Eventually, Respondent was
obliged to trade for Raymond Butler, a receiver who had
played for the Colts and who had impressed Knox when
doing so in games against Buffalo. At no point did Respond-
ent provide specific evidence that could provide a basis for
concluding that, had he been able to play for Respondent in
1983 and 1984, McCullum would not have been able to con-
tinue doing so throughout the 1985 season. Therefore, I con-
clude that the duration of the backpay period extends from
September 7, 1982, through Respondent’s 1985 season.
III. THE ADEQUACY OF MCCULLUM’S SEARCH FOR
INTERIM EMPLOYMENT
The backpay, or make whole, remedy is intended both to
‘‘reimburse[] the innocent employee for the actual losses
which he had suffered as a direct result of the employer’s
improper conduct’’ and to ‘‘further[] the public interest ad-
vanced by the deterrence of such illegal acts.’’ (Footnote
omitted.) NLRB v. Madison Courier, 472 F.2d 1307, 1316
(D.C. Cir. 1972). However, a claimant must exert reasonable
efforts to become and to remain employed throughout the
backpay period, ‘‘not so much [for] minimization of damages
as [to promote] the healthy policy of promoting production
and employment.’’ Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 200 (1941). That is, the claimant’s ‘‘duty is based both
on the doctrine of mitigation of damages and on the policy
of promoting production and employment.’’ (Citations omit-
ted.) NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569,
575 (5th Cir. 1966).
As a result, a claimant ‘‘is not entitled to backpay to the
extent that he fails to remain in the labor market . . . [or]
fails diligently to search for alternative work.’’ NLRB v.
Mastro Plastics Corp., supra, 354 F.2d at 174 fn. 3. Accord:
NLRB v. Madison Courier, supra, 472 F.2d at 1317; Knicker-
bocker Plastic Co., 132 NLRB 1209, 1219 (1961). Further-
more, a claimant does not satisfy that responsibility simply
by accepting whatever interim employment may happen to
come along. ‘‘When a discriminatee has been improperly de-
prived of his employment position, he is under the recog-
nized duty to make reasonable efforts to locate interim work
comparable to his denied position and commensurate with
his particular background and experience.’’ (Footnote omit-
ted.) NLRB v. Madison Courier, supra, 472 F.2d at 1325. Ac-
cord: Arlington Hotel Co. v. NLRB, 876 F.2d 678, 680 (8th
Cir. 1989); NLRB v. Westin Hotel, 758 F.2d 1126, 1129–
1130 (6th Cir. 1985).
Respondent challenges the adequacy of McCullum’s
search for interim employment at essentially three points
after September 7, 1982. First, as described in subsection I,
supra, after having been waived on that date. McCullum was
immediately offered a contract by the Minnesota Vikings. He
declined that offer in favor of attempting to secure what he
regarded as more meaningful employment with the Raiders.
But his tryout with the latter failed to generate a contract
offer and, after having been assured by then-Coach Grant
that acceptance of the Minnesota offer would provide mean-
ingful employment. McCullum signed with the Vikings.
However, by initially having rejected that offer, in favor of
pursuing employment with the Raiders, McCullum lost the
opportunity to earn income that he otherwise would have re-
ceived, had he accepted Minnesota’s offer and been activated
for the Vikings’ first league game on September 12, 1982.
According to Respondent, the logs of that income was
willful, because McCullum would have earned income for
that game had he simply accepted Minnesota’s offer, rather
than seeking employment with the Raiders. However, the
Board has long held that, ‘‘the entire backpay period must
635SEATTLE SEAHAWKS
be scrutinized to determine whether throughout that period
there was, in light of all surrounding circumstances, a reason-
able continuing search such as to foreclose a finding of will-
ful loss.’’ Cornwall Co., 171 NLRB 342, 343 (1968). ‘‘Be-
cause the ultimate test of the employee’s efforts is whether
they are consistent with the inclination to work and to be
self-supporting, we approve the NLRB’s policy of looking to
the backpay period as a whole and not at isolated portions
of that period.’’ (Citations omitted.) Kawasaki Motors v.
NLRB, 850 F.2d 524, 527 (9th Cir. 1988). Based on that
principle, the Board has concluded that, ‘‘a discriminatee is
not required to work instantly,’’ (citations omitted). I.T.O.
Corp. of Baltimore, 265 NLRB 1322 (1982).
Applying those principles to McCullum’s efforts during
the week following his unlawful waiver by Respondent, there
is no basis for concluding that, despite his initial rejection of
Minnesota’s offer, he had failed to display an ‘‘inclination to
work and to be self-supporting.’’ Kawasaki Motors v. NLRB,
supra. Because he believed that he had a better chance of se-
curing a position and remaining with the Raiders, McCullum
arranged for a tryout with that team. That tryout occurred
within 3 days of his waiver by Respondent. There is no evi-
dence whatsoever that his desire to play for the Raiders had
not been a genuine one—no evidence that he did not fully
intend to sign a playing contract, if offered, and play for the
Raiders. Moreover, once he learned that a Raider offer would
not be forthcoming, and after receiving Grant’s assurance
that he would have a meaningful opportunity to play with the
Vikings, McCullum promptly signed a playing contract with
Minnesota, 1 week to the day after having been waived by
Respondent. In these circumstances, McCullum’s initial re-
jection of Minnesota’s offer cost him income from the initial
game of the season, but it did not suffice to demonstrate a
willful loss of earnings during the week between the waiver
and execution of his contract with the Vikings.
Respondent next contends that McCullum incurred a will-
ful loss of earnings by failing to seek a playing contract with
teams other than the Vikings immediately on expiration of
his contract with Minnesota on February 1, 1984. Testimony
by McCullum, as well as other evidence, shows that because
of the staffing process followed by teams to ensure full train-
ing camp rosters, McCullum would, perhaps, have been more
readily able to secure a playing contract during the winter
and early spring, than was the fact during the later months
of June through August. However, before McCullum’s con-
tract had expired, Minnesota had tendered a ‘‘qualifying
offer’’ to him. As a result, any salary amount that he nego-
tiated with another team by April 15, 1984, under the rules
then existing, would have been subject to Minnesota’s right
to match that offer. Even if the Vikings elected not to make
a matching offer, Minnesota still would have been entitled to
draft choice compensation from the team who signed
McCullum. Further, absent such an offer by another team be-
fore April 15, 1984, McCullum was absolutely barred from
being able to negotiate with a team other than Minnesota be-
tween that date and June 1, 1984, unless released by the Vi-
kings, as occurred on May 30, 1984. Accordingly, between
February 1 and May 30, 1984, McCullum was not an unfet-
tered free agent and lacked an unrestricted right to seek em-
ployment with teams other than the Vikings.
More significantly, McCullum testified that, despite expi-
ration of his contract on February 1, 1984, he had wanted
to continue playing with the Vikings—had fully intended to
negotiate and sign a new playing contract with that team.
Furthermore, prior to May 30, 1984, there was no indication
whatsoever that Minnesota was not of a like mind—did not
fully intend to execute a new contract with McCullum.
Nothing inherent in expiration of a playing contract serves
to indicate that a team does not intend to re-sign a veteran
player. McCullum had received a qualifying offer from Min-
nesota by February 1, 1984. Further, after having received
McCullum’s initial salary demand, the Vikings countered
with a higher offer, the so-called section 17 offer of 110 per-
cent of McCullum’s previous year’s salary. Had that offer
been accepted by McCullum, Minnesota would have been re-
quired to execute a playing contract with him for the ensuing
season. So far as the evidence shows, the Vikings were fully
prepared to do so. Moreover, McCullum’s rejection of that
offer did not end the negotiating process with the Vikings.
Rather, negotiations continued through the spring of 1984.
As a result, not only were McCullum’s actions consistent
with an ‘‘inclination to work and to be fully self-support-
ing,’’ id., during the upcoming football season, but there is
no objective basis for concluding that there was any indica-
tion that he would not be able to do so as a member of the
Vikings team, at least not prior to May 30, 1984. In these
circumstances, the evidence will not support the conclusion
that McCullum incurred a willful loss of earnings by failing
to geek employment with teams other than Minnesota be-
tween February 1 and May 30, 1984.
Respondent’s third contention of willful loss of earnings
pertains to the period after McCullum had been released by
Minnesota on May 30, 1984. As set forth in section I, supra,
during the ensuing summer, agent Walsh contacted several
NFL teams in an effort to secure a tryout invitation, if not
an invitation to training camp, for his client. However, none
was forthcoming. Walsh conceded that he had not contacted
Respondent on McCullum’s behalf, but it was Respondent
who owed McCullum an offer of reinstatement. Accordingly,
McCullum was not obliged to ‘‘come back, hat in hand, and
seek favorable consideration as [a] possible employee if [Re-
spondent should have chosen to offer him a tryout].’’ Hydro-
Dredge Accessory Co., 215 NLRB 138, 139 (1974).
Nor did Walsh contact teams in either the USFL or CFL.
Yet, by May 30, 1984, the USFL had completed its 1984
season, which was played in the spring. In contrast, the CFL
played a summer–fall season, beginning in late July or early
August and ending in November. Although it is conceivable
that Walsh still might have located a CFL team willing to
sign McCullum so close to commencement of seasonal play,
Respondent has failed to show that Walsh actually could
have done so. Aside from that omission, in the cir-
cumstances, Walsh’s failure to contact a CFL team in 1984
is not fatal. The duty of mitigation does not require a claim-
ant to exhaust every possible potential employment oppor-
tunity. Only a ‘‘reasonable’’ effort is required. See, e.g.,
Southern Silk Mills, 116 NLRB 769, 773 (1956). Accord:
NLRB v. Westin Hotel, supra. McCullum had been released
unexpectedly. His entire career had been in the NFL. Con-
sequently, it was hardly illogical for him to believe that,
given the abrupt notice of his need to locate employment, his
best opportunity to secure immediate employment would be
with teams in that league, most all of whom he had played
against over the preceding 10 years. Inasmuch as Walsh con-
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tacted a number of those teams through that summer, it can-
not be said that his efforts were not reasonable simply be-
cause he did not contact teams in another league, as well.
Accordingly, it cannot be said that a willful loss of earnings
was incurred because he did not broaden the search for em-
ployment for McCullum during the summer months of 1984.
Respondent’s perhaps principal contention is that
McCullum retired altogether from playing professional foot-
ball, and totally withdrew from the professional football
players’ labor market, by his resignation letter to the Vikings
on August 28, 1984. As the preseason had progressed toward
commencement of the 1984 regular season without prospect
of an employment offer, McCullum had become concerned
about his ability to support himself and his family. While
severance pay was available for retiring players, if
McCullum had delayed providing notice of retirement until
after the first regular season game, under the rules then in
force he would not have been eligible to begin receiving
those payments before the third regular season game of 1985,
more than a year in the future. Thus, he submitted the notice
to obtain his severance payments without that delay. It had
not been his intention to permanently retire, if he could later
receive an offer to play.
It is undisputed that players were free to revoke such res-
ignation notices if they were offered playing contracts after
having submitted them. In fact, there is evidence that, in the
past, some players actually had revoked resignation notices
and signed playing contracts. Further, Walsh testified that he
had continued seeking football employment for McCullum
‘‘through the summer of that year [1984] and even into the
fall.’’ Such efforts would have extended beyond the date of
McCullum’s resignation letter to the Vikings. In these cir-
cumstances, I conclude that McCullum’s resignation notice
did not constitute a withdrawal from the professional football
labor market on August 28, 1984, but instead had been sub-
mitted only as a vehicle for generating revenue because he
had remained unemployed.
However, a contrary conclusion results from examination
of subsequent events. As set forth at the beginning of this
section, to mitigate the effects of an unfair labor practice, a
claimant is required to seek not merely any interim employ-
ment that he happens on, but rather must seek interim em-
ployment ‘‘comparable to his denied position and commen-
surate with his particular background and experience.’’ NLRB
v. Madison Courier, supra. McCullum had been a wide re-
ceiver for 10 seasons preceding his release by the Vikings.
He seeks backpay under a gross backpay formula predicated
upon continued employment in that occupation. Accordingly,
to satisfy the mitigation duty applicable to him, he was
obliged to continue seeking interim employment as a wide
receiver. But that admittedly did not happen.
Although failure to exercise reasonable efforts to obtain
equivalent interim employment is an affirmative defense,
NLRB v. Mastro Plastics Corp., supra, 354 F.2d at 175, in
that case the court continued by pointing out that ‘‘informa-
tion relevant to whether the discriminatee willfully incurred
a loss of earnings is within the knowledge of the
discriminatee, not the employer.’’ (At 177.) Here, McCullum
admitted that he had made no personal search for interim
employment as a wide receiver, but had delegated respon-
sibility for making that effort to his agent, Walsh. In turn,
while the latter admitted that the best time to look for em-
ployment as a player is during the months of January through
March, he conceded that he had no recollection of having
contacted any NFL team on McCullum’s behalf during those
months nor during the remaining 9 months in 1985. More-
over, with respect to 1984, Walsh testified that he had made
such contacts ‘‘into the fall,’’ but admitted that he did not
‘‘remember how long we did.’’ Accordingly, he was unable
to recall having made any contacts for football employment
during the final 3 months of 1984.
Short of calling very official of every NFL team in 1984,
Walsh was the only individual from whom Respondent could
have elicited information about the duration of the search for
interim employment on McCullum’s behalf. Though given
the opportunity to do so, Walsh did not go much as claim
that he had made an effort to contact even a single team on
McCullum’s behalf after the third calendar quarter of 1984,
much less provide specific testimony regarding any such
contact. In light of Walsh’s role in 1984 and 1985 as
McCullum’s agent, and his obvious continued sympathy to-
ward McCullum’s position when testifying during his pro-
ceeding, I conclude that, in the circumstances, Respondent
pursued this issue as far as was possible and, in light of the
absence of even a generalized assertion of efforts to locate
wide receiver employment after the third calendar quarter of
1984, satisfied its burden of establishing that efforts to seek
interim employment for McCullum as a wide receiver ceased
and, moreover, that they had ceased by the end of the third
calendar quarter of 1984.
Of course, the General Counsel and McCullum argue that
employment was difficult to locate by the time that Min-
nesota had released McCullum, in view of the ordinary pro-
cedure followed by teams to prepare for training camp, and,
further, that McCullum had sought nonfootball-related in-
terim employment throughout the last calendar quarter of
1984 and into 1985, resulting in his acceptance of the posi-
tion of director of the state traffic safety commission. Yet,
at no point did McCullum claim that either acceptance of
that position or his general search for interim employment
would have prevented him from accepting a playing contract,
had one been offered to him in 1984 or 1985. To the con-
trary, he testified that he had continued to desire to play pro-
fessional football and had never instructed his agent to give
up trying to find an opportunity for him to do so. So far as
the record discloses, despite efforts to locate nonfootball-re-
lated interim employment, Walsh was not prevented by those
efforts from continuing concurrent efforts to locate employ-
ment for McCullum as a wide receiver. Accordingly, this is
not a situation where a desperation search for any available
employment, whatsoever, prevented the claimant from con-
tinuing to search for employment comparable to that from
which he had been unlawfully waived by Respondent. Never-
theless, Walsh ceased making those efforts.
It is well settled that a claimant is entitled to lower his
sights, ‘‘by seeking less remunerative work after he [h]as un-
successfully attempted for a reasonable period of time to lo-
cate interim employment comparable with his improperly de-
nied position.’’ NLRB v. Madison Courier, supra, 472 F.2d
at 1321. But at no point has it been held that once a claim-
ant’s sights are lowered, that claimant is thereafter absolved
altogether form accepting subsequently disclosed comparable
employment nor, for that matter, from continuing to geek
comparable interim employment to the extent that a general-
637SEATTLE SEAHAWKS
ized search for it does not disrupt a more realistic effort to
locate less remunerative, but more certain, work. As con-
cluded above, there is no evidence that the effort to locate
nonfootball playing interim employment for McCullum had
precluded Walsh from concurrently continuing to locate wide
receiver employment for McCullum. Accordingly, McCull-
um’s efforts to locate nonfootball-related interim employment
did not justify abandonment of efforts to locate a wide re-
ceiver’s position after the third calendar quarter of 1984.
Nor is it a more persuasive argument that football-related
employment was more difficult to locate after the 1984 sea-
son had opened. True, the relevant job market is one cir-
cumstance that must be considered in evaluating the reason-
ableness of a claimant’s search for interim employment.
NLRB v. Westin Hotel, supra, 758 F.2d at 1129; Rogers Fur-
niture Sales, 213 NLRB 834 (1974). Indeed, where a claim-
ant actually seeks interim employment, the respondent fails
to satisfy its affirmative burden if it ‘‘present[s] no probative
evidence that there were jobs available in the area . . . or
that [the claimant] rejected suitable employment.’’ Neely’s
Car Clinic, 255 NLRB 1420, 1421 (1981). But, as pointed
out in subsection II, supra, in another context, few general
principles are applied in absolute fashion and without limita-
tion.
That limitation doctrine is no less applicable to a respond-
ent’s normal burden of showing available alternative employ-
ment in a context where, as here, the claimant abandons the
search for comparable interim employment. Where that oc-
curs, ‘‘the circumstance of a scarcity of work and the possi-
bility that none would have been found even with the use of
diligence is irrelevant.’’ American Bottling Co., 116 NLRB
1303, 1307 (1956). That particular limitation doctrine has
been adopted specifically by the circuit courts of appeals.
See, e.g., NLRB v. Madison Courier, supra, 472 F.2d at
1319. As a result, when the Board appeared to qualify the
bright-line rule of American Bottling, by observing that there
had actually been ‘‘numerous, substantially equivalent job
opportunities’’ in that case, Arlington Hotel Co., 287 NLRB
851, 853 (1987), the Eighth Circuit Court of Appeals re-
versed the portion of the Board’s decision containing that
seeming qualification. Arlington Hotel Co. v. NLRB, 876
F.2d 678 (1989). The Board accepted the court’s decision
without further comment concerning the continued viability
of the above-quoted portion of America Bottling. Arlington
Hotel Co., 297 NLRB 436 (1989). In no other cage has the
Board held, or even indicated, that the American Bottling Co.
rule is no longer effective.
Of course, NFL teams did continue to employ wide receiv-
ers throughout their 1984 and 1985 seasons. Yet, no search
for interim employment as a wide receiver was made on
McCullum’s behalf for most of the former nor for the en-
tirety of the latter. True, by 1985 McCullum had not played
football since the 1983 season, thereby leaving a 1-year gap
in his playing career. Nevertheless, Walsh did not claim, and
there is no other evidence showing, that McCullum’s non-
participation in 1984 seasonal play had motivated the admit-
ted failure to make contacts with teams on McCullum’s be-
half for the 1985 season.
The evidence shows that similar gaps in a wide receiver’s
playing career have not precluded teams from signing them.
As pointed out in section II, supra, Dwight Scales had re-
sumed his career after not having played during the 1980
season. Similarly, after having not played during almost all
of the 1982 season, Harold Jackson had been signed by the
Vikings, for whom McCullum had been playing at that very
time, to play in the final game of that season. Further, while
Jackson had played but that single game during the 1982 sea-
son, the almost total 1-year gap in his career did not prevent
Respondent from signing him for the 1983 season. Indeed,
Beathard’s own career was an example of persistence gener-
ating playing opportunities, notwithstanding periods of inac-
tivity. He was signed out of college by the Redskins. But he
had been waived before the season began and did not play
for any team during that season. Nonetheless, he was signed
by the Chargers before the next preseason. After he had been
cut by the Chargers, once preseason games had been com-
pleted, Beathard did not play during that season nor during
the following one. However, those two seasons of inaction
did not prevent the Vikings from signing him thereafter.
No doubt McCullum’s career was not enhanced by his
failure to play during the 1984 season. But, of itself, a single
season’s inactivity would not have automatically precluded
professional football teams from signing him for 1985 play,
had he but made the effort to be signed, especially during
the favorable months of January through March of that year.
His own failure to seek being signed effectively precluded
teams from considering whether or not to sign a contract
with him, or to at least offer him a tryout.
During 1985, wide receivers were employed not only by
NFL teams, but also by teams playing in the USFL and CFL.
True, not all teams in the USFL had been financially stable
and CFL teams were subject to a ceiling on the number of
non-Canadian players that could be members of each team.
Nevertheless, the fact remains that teams in both leagues
played a full season in 1985. McCullum was not obliged to
accept the financial risk of playing for an insolvent team.
However, if some USFL teams had been experiencing finan-
cial difficulties. there is no evidence showing that every one
of them had been unable, or even potentially unable, to pay
its players that year. Yet, McCullum made no effort to secure
so much as a tryout with any USFL team. Similarly, non-
Canadians played on CFL teams during that league’s 1985
season and there is no showing that McCullum could not
have been one of them—had he but tried to do so. After all,
the evidence shows that after having played for 14 seasons
in the NFL, Fred Billetnikoff had been cut by the Raiders,
but had gone on to play an additional season for the Mon-
treal franchise in the CFL.
When he testified, McCullum, in effect, disparaged the
USFL and CFL as leagues less prestigious than the NFL. In
fact, that appeared, from his manner of testifying, to have
been his true objection to playing for teams in either league.
However, teams in both of those leagues employed wide re-
ceivers in 1985. There is no evidence that employment at
that position in one league was not substantially comparable
to playing wide receiver in the other two leagues. Neither the
Board nor the courts of appeals have ever looked to the com-
parative prestige of the discharging and potential interim em-
ployer in determining that interim employment is not suit-
able. To the contrary, a claimant cannot validly decline com-
mensurate interim employment simply because of ‘‘personal
convenience, preference, or accommodation,’’ Knickerbocker
Plastic Co., supra, 132 NLRB at 1214–1215, and a disregard
of interim employment possibilities ‘‘because those jobs did
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not suit [the claimant’s] convenience demonstrate that he
would only have accepted work when he chose and as he
pleased.’’ Continental Insurance Co., 289 NLRB 579, 580
(1988).
In these circumstances, I conclude that there is evidence
of the existence of opportunities for employment as a wide
receiver in 1985, but that the evidence shows that McCullum
made no effort to attempt to obtain a position as a wide re-
ceiver with any team in any league for that season. Con-
sequently, during that year, he effectively abandoned profes-
sional football employment, thereby incurring a willful loss
of earnings for 1985.
Furthermore, it cannot be said with any degree of certainty
that McCullum would have confronted the 1985 season with
a 1-year gap in his playing career, had he but continued
searching for interim employment as a wide receiver during
the final calendar quarter of 1984. True, the season already
had been underway by that time. Consequently, each NFL
team had selected the players that it desired, and could ob-
tain, for its roster. However, McCullum was aware that no
team progresses through its schedule free of injury to some
of its players. As a result, every team maintains a list of
players—the ready list, emergency list, hot list—to which it
can look for replacement players. The record does show that
a team prefers to replace injured players with ones who went
through its training camp and could not survive the final cut,
but are familiar with that team’s system. However, that is not
always possible and the evidence shows that teams tend next
to look to unsigned veteran players whose experience makes
it possible for them to provide more immediate help than
would be provided by a less experienced player. For exam-
ple, Harold Jackson had been signed by the Vikings late in
1982, even though he had never participated in Minnesota’s
training camp. Indeed, due to injuries incurred by regular re-
ceivers, McCullum had been signed by Minnesota earlier
during that same season, even though he had not participated
in the Vikings’ training camp and preseason games for that
season.
In view of the foregoing considerations, I conclude that
after the third quarter of 1984, McCullum incurred a willful
loss of earnings by failing to continue seeking comparable
interim employment commensurate with his background and
experience as a professional wide receiver. As a result, al-
though ‘‘he did not retire [by sending his resignation notice
to the Vikings on August 28, 1984], he effectively removed
himself from the job market,’’ Continental Insurance Co.,
supra, by his subsequent inaction, and, accordingly, is not
entitled to backpay for the remainder of the backpay period
after the third quarter of 1984.
IV. CALCULATION OF NET BACKPAY
Because professional football is a seasonal industry, Re-
spondent proposes that a more ‘‘accurate picture of the reali-
ties of the case’’ will be produced by bifurcating each cal-
endar year into seasonal and nonseasonal segments, instead
of applying the normal calendar quarter method specified in
F. W. Woolworth Co., 90 NLRB 289 (1950). In some situa-
tions such an argument might have some merit, or at least
require closer examination of the reasons for applying that
method of calculating backpay to them. For example, this
might have been necessary had McCullum accepted employ-
ment with a CFL team that plays a season beginning and
ending before the NFL season—one that begins in the second
calendar quarter and does not extend so long into the fourth
calendar quarter as do the seasons of NFL teams.
However, in essence, the sole reason that Respondent ad-
vances for its proposal is that its net backpay would be re-
duced, at least at some points, by substituting a semiannul
division for a calendar quarterly one. That hardly is a com-
pelling policy reason for altering the Board’s usual method
of calculating backpay. Nor is any other public policy reason
for changing suggested by the circumstances of McCullum’s
backpay period. So far as the evidence discloses, Respond-
ent’s position is no different from that of any other respond-
ent in a seasonal industry. Therefore, I shall calculate
McCullum’s net backpay by applying the normal calendar
quarter method for doing so.
As I requested, both the General Counsel and Respondent
have submitted proposed quarterly backpay computations: the
General Counsel in a summary of backpay liability by quar-
ters, and Respondent in a backpay calculations. The parties
agree that for the third calendar quarter of 1982, gross back-
pay should include the two regular season games played by
Respondent during that quarter. That amounts to $10,000 per
game for a total of $20,000. Moreover, the parties agree that
gross backpay for this quarter, as for succeeding quarters,
properly includes off-field personal appearances that
McCullum would have made, had he not been unlawfully
waived by Respondent. However, Respondent apparently
overlooked the effects of amendments and testimony on the
quarterly amounts attributed to those appearances in the
amended backpay specification, with the result that adjust-
ments are not made in the calculations. For example, Re-
spondent adopts the amended specification’s $225 figure for
this calendar quarter, whereas the General Counsel’s sum-
mary claims only $142 as a result of the record. In light of
what occurred during the hearing, and in view of the General
Counsel’s recalculation, I conclude that gross backpay for
this calendar quarter is $20,142.
As discussed in section III, supra, McCullum did not incur
a willful loss of earnings by declining Minnesota’s initial
employment offer. Thus, his only interim earnings for the
third calendar quarter of 1982 are the $10,000 that he actu-
ally received during that quarter from the Vikings. He is not
also deemed to have constructively earned an additional
$10,000 because his failure to accept that team’s initial offer
deprived him of eligibility for Minnesota’s first regular sea-
son game. Respondent does not dispute that from the interim
earnings figure should be deducted McCullum’s expenses in-
curred in generating that income. Nor does Respondent dis-
pute that those expenses total $1,070 for this particular quar-
ter. Therefore, I conclude that net backpay for the third cal-
endar quarter of 1982 amounts to $11,212.
All parties agree that for the fourth calendar quarter of
1982, McCullum’s gross backpay would have been $60,383,
that his actual interim earnings had been $60,000, and that
$3174 should be deducted from those interim earnings as ex-
penses incurred in generating them. Therefore, I conclude
that net backpay for the fourth calendar quarter of 1982 is
$3,557.
For the first calendar quarter of 1983, the parties agree
that McCullum would have earned $10,000 playing in Re-
spondent’s last regular season game and that he would have
received additional money for off-field personal appearances,
639SEATTLE SEAHAWKS
although, for the apparent reason described above, there is a
$133 variance in the amounts listed in the summary and cal-
culations, with the General Counsel computing that amount
to be $3,450 and Respondent computing it as $3,317. Fur-
thermore, the parties agree that McCullum actually earned
$10,000 playing for Minnesota in its final regular season
game, which should be reduced by $857 for expenses in-
curred in generating that interim income. However, there is
a significant dispute about an additional $16,000 received by
McCullum during the first calendar quarter of 1983.
Respondent’s 1982 season record did not qualify it for
postseason play, but Minnesota’s record did qualify it for the
playoffs. The Vikings won their first game and lost the next
one that was played, thereby being eliminated from further
postseason competition. For having played in those two
games, each Minnesota player received a total of $16,000—
money that McCullum would not have received had he con-
tinued to play for Respondent. Contrary to McCullum and
the General Counsel, Respondent contends that this money
constituted interim earnings, deductible from gross backpay.
I agree.
This is not a situation in which Minnesota paid bonuses
to its players for outstanding performances during the course
of the 1982 regular season. The players could only earn that
money by participating in additional games. Nor is it a situa-
tion where payments were received by players for having
played overtime periods during regular season games, there-
by incurring, in effect, overtime payments. Rather, Min-
nesota’s season was prolonged beyond Respondent’s season
and McCullum was paid for his extra work during that pro-
longed season. Neither McCullum nor the General Counsel
has cited any authority for the proposition that where an in-
terim seasonal employer’s season extends beyond that of the
respondent, a claimant’s income from having worked during
the former’s prolonged portion of the season is excluded
from interim earnings. Yet, that is what occurred in this case
during the first calendar quarter of 1983.
It is not significant that the Vikings were able to prolong
their season by virtue of better performance than Respondent,
as measured by comparative records. In no other seasonal in-
dustry does the Board take into account the reason why one
employer’s season extends longer than that of another one.
And, in no other seasonal industry does the Board exclude
from interim earnings the excess earned from working a
more prolonged season as a result of the interim employer’s
more successful, or better method, of operation than the sea-
sonal employer who committed the unfair labor practice(s).
The record suggests no reason why the professional football
industry should be treated differently. In all such situation,
prolonged seasons are, at least to some extent, the result of
the efforts of employees working for the employer.
Two other points are work noting in connection with the
$16,000 received by McCullum. First, most of the income
that he would have received from off-season personal appear-
ances was from Seahawk basketball games played during the
off-season. Although not a function operated by Respondent,
only members of Respondent’s team can play Seahawk bas-
ketball, an informally organized group of Respondent’s play-
ers who are paid for playing basketball at fund raisers con-
ducted by various Seattle-area civic groups. The General
Counsel’s theory for recovering these amounts, with which
I agree, is that having unlawfully waived McCullum, Re-
spondent effectively precluded him from earning income
from participating in this postseason activity. Yet, as a mem-
ber of the 1982 Vikings, McCullum was able to participate
in that team’s postseason activity. Consequently, just as Re-
spondent’s unfair labor practice deprived McCullum of ac-
cess to a source of income based on a relationship with that
team, by participation in one type of athletic activity, his
membership on the interim employer’s team enabled him to
earn income by participating in another type of athletic activ-
ity—one more commensurate with McCullum’s background
and experience.
Second, there appears to be no dispute that had McCullum
signed with a USFL team and played during that team’s
spring season, he would have been assigned interim earnings
during the calendar quarters in which that team’s games had
been played. Yet, there is no difference, so far as the record
discloses, between playing wide receiver for a USFL team
and playing wide receiver for the NFL’s Minnesota Vikings,
although obviously the caliber of play—the level of competi-
tion—would have been higher with the latter. The point is
that the reason for the game being played is not a significant
distinction. In both instances, McCullum would have been
paid for using his skills to play wide receiver for a profes-
sional football team.
In view of the foregoing considerations, I conclude that
the $16,000 received by McCullum for playing in Min-
nesota’s final two games should be included as interim earn-
ings, with the result that his total interim earnings for the
first calendar quarter of 1983 exceeded the amount of gross
backpay claimed for that same quarter. Therefore, I conclude
that there is no net backpay owing for the first calendar quar-
ter of 1983.
For the second calendar quarter the General Counsel con-
tends that gross backpay should consist of $121, paid by Re-
spondent for participating in its spring minicamp, and $1075
for off-season personal appearances, principally for appear-
ances in Seahawk basketball. Respondent does not challenge
the fact that McCullum would have earned $121 for partici-
pation in its minicamp. Moreover, in its calculations it lists
an amount of $1033 for off-season personal appearances, re-
flecting the amount enumerated in the amended specification
and thereby failing to account for the $42 change dictated by
the record. However, while there is no significant arithmet-
ical dispute concerning the amount that would have been
earned for off-season personal appearances, Respondent does
challenge altogether inclusion of any amount in gross back-
pay for such appearances during this calendar quarter.
First, it argues that McCullum would have been cut by
Coach Knox as a result of minicamp performance and, con-
sequently, McCullum would not have received further gross
backpay during this and the remaining quarters of the back-
pay period. However, in section II, supra, I concluded that
a preponderance of the evidence did not support that argu-
ment. Thus, it cannot be a basis for depriving McCullum of
backpay for personal appearances during this and succeeding
quarters.
Second, Respondent contends that McCullum failed to
mitigate his losses by seeking interim employment during the
second calendar quarter of 1983. Of course, in section III,
supra, I agreed with that contention as applied to the period
after the third calendar quarter of 1984. However, that con-
clusion was based on the admissions of McCullum and his
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agent Walsh, elicited during the course of their testimony. In
contrast, Respondent, who bears the burden of doing so, ad-
duced no evidence showing that McCullum had failed to ex-
ercise reasonable efforts to mitigate his losses during the sec-
ond calendar quarter of 1983, the intervening period between
his two 1-year playing contracts with the Vikings. Con-
sequently, there is no evidence to support a contention of
willful loss of earnings during that quarter.
Finally, Respondent contends that the amount claimed for
personal appearances is only an estimate and, further, that
McCullum should not be compensated for losses from
Seahawk basketball because he admitted not having paid in-
come taxes on amounts received from that activity in prior
years. Of course, nonpayment of taxes can hardly be ap-
plauded. But past violations of other statutes does not bar op-
eration of the Act’s remedial provisions. See, e.g., Sure-Tan,
Inc. v. NLRB, 467 U.S. 883 (1984). Moreover, there is noth-
ing inherently improper in relying upon estimates as a basis
for calculating gross backpay for irregularly conducted ac-
tivities for which no payroll or other records are maintained.
During the hearing Respondent made no effort to further re-
fine the backpay amount attributed to Seahawk basketball.
Surely it could, at least, have tried to identify its former
players who had actually participated in that program during
the second quarter of 1983, thereby providing a source for
ascertaining the number of such games actually played. Re-
spondent did not claim that it was unable to do so and there
is no other basis in the record for changing the estimate that
led to the amounts claimed for off-season personal appear-
ances. In view of the foregoing considerations, I conclude
that net backpay for the second calendar quarter of 1983 is
$1,196.
For the third calendar quarter of 1983, there is a $163 dif-
ference in net backpay between the General Counsel’s sum-
mary and Respondent’s calculations, arising from a dif-
ference in result reached for personal appearances and for ex-
penditures incurred in generating interim employment. As in
preceding quarters, this appears to be no more than a com-
putational problem. Thus, there is no disagreement that, dur-
ing this particular quarter, McCullum would have received
$50,887 playing for Respondent, taking into account an
added preseason game that Minnesota did not play, and did
receive $49,600 playing for the Vikings. Respondent lists
personal appearance income as $225 for the quarter, while
the General Counsel calculates an amount of $562. However,
with regard to expenses incurred in generating interim em-
ployment, Respondent would allow $3395, while the General
Counsel allowed the lesser deduction from interim earnings
of $3174. Inasmuch as it appears that the General Counsel’s
figures correctly reflect the changes developed during the
hearing in the figures enumerated in the amended specifica-
tion. I conclude that the net backpay for the third calendar
quarter of 1983 amounts to $4744.
Aside from the above-noted dispute concerning
McCullum’s continued membership on its team, Respondent
does not dispute either the elements or the arithmetical com-
putations for the fourth calendar quarter of 1983: gross back-
pay of $155,133, representing $138,750 earnings for regular
season play, $16,000 for Respondent’s two postseason games
played in that quarter, and $383 for personal appearances;
and, interim earnings totaling $138,750 for regular season
play, no earnings for postseason play because Minnesota’s
record did not qualify it for the playoffs, and $4038 deducted
from interim earnings as costs incurred in generating interim
employment. Therefore, I conclude that net backpay for the
fourth calendar quarter of 1983 amounts to $20,421.
Since I have concluded in section II, supra, that a prepon-
derance of the evidence fails to show that McCullum would
not have remained a member of Respondent’s team through-
out its 1983 season, I conclude that gross backpay for the
first calendar quarter of 1984 should also include $18,000
that each of Respondent’s players received for playing in the
American Football Conference Championship Game, played
at the beginning of that quarter. In addition, Respondent
agrees that during this quarter McCullum would have earned
income from personal appearances, although based upon the
evidence the General Counsel enumerates an amount that is
$133 more than Respondent lists on the basis of the uncor-
rected amended specification. Accordingly, I conclude that
gross backpay for this calendar quarter is $21,450. The
record discloses no interim earnings for this quarter and, as
was true for the second calendar quarter of 1983, Respondent
has failed to adduce evidence showing a willful loss of earn-
ings during this quarter. Therefore, I conclude that net back-
pay for the first calendar quarter of 1984 amounts to
$21,450.
In section III, supra, I concluded that a preponderance of
the evidence does not support any contention that McCullum
would have encountered the difficulties concluding negotia-
tions for a 1984 playing contract that he encountered with
Minnesota and, further, that a preponderance of the evidence
does not support the contention that Coach Knox would have
cut McCullum at any point before and during the 1984 sea-
son. Consequently, based upon the evidence, he is entitled to
gross backpay for Respondent’s minicamp and for off-season
personal appearances during the second calendar quarter of
1984. The parties agree that the former amounted to $129
and, although there is a $42 disparity between their computa-
tions for personal appearances, the record appears to support
the amount of $1075. Thus, gross backpay for this quarter
is $1204. Moreover. no interim earnings have been shown
for the quarter and neither has a willful loss of earnings been
established. Therefore, I conclude that net backpay for the
second calendar quarter of 1984 amounts to $1204.
Inasmuch as McCullum’s agent sought employment for his
as a wide receiver throughout most, if not all, of the third
calendar quarter of 1984—‘‘into the fall’’—I conclude that
he is entitled to net backpay for that quarter in the amount
of $70,142. Seventy thousand dollars of that amount rep-
resents salary he concededly would have received playing
football for Respondent. In addition, based upon the amend-
ed backpay specification, Respondent enumerates $225 that
McCullum would have received for personal appearances.
However, relying upon the record at the conclusion of the
hearing, the General Counsel claims only $142 for such ap-
pearances during this calendar quarter and that does appear
to be more accurate. Consequently, gross backpay for this
quarter is $70,142. Furthermore, as discussed in section III,
supra, Walsh sought unsuccessfully to locate both football-
playing and nonfootball-playing positions for McCullum,
with the result that no interim earnings were generated.
Therefore, I conclude that net backpay for the third calendar
quarter of 1984 amounts to $70,142.
641SEATTLE SEAHAWKS
As concluded in section III, supra, McCullum incurred a
willful loss of earnings after the third calendar quarter of
1984 by abandoning all further efforts to locate comparable
employment commensurate with his experience and skills as
a wide receiver. However, it is not disputed that he would
have received income from personal appearances during the
remainder of the backpay period, had Respondent not unlaw-
fully waived him in 1982. As discussed in section III, supra,
he and Walsh sought nonfootball-playing employment for
McCullum, at least until the latter became director of the
state traffic safety commission, a job that generated earnings
which all parties agree constitute interim earnings. Even
though at least some of the specific types of employment
sought by McCullum differed from the type of employment
that would have been generated from personal appearances
while a member of Respondent’s team, that difference is one
of form, not substance. Therefore, I conclude that, despite his
lack of efforts to obtain football-related employment during
the remainder of the backpay period, McCullum did not
incur a willful loss of earnings with respect to nonfootball
earnings during the remainder of the backpay period and, ac-
cordingly, is entitled to the personal appearance portion of
gross backpay through the fourth calendar quarter of 1985.
The parties agree that during the final calendar quarter of
1984, McCullum would have received $383 from personal
appearances, with no interim earnings generated by his ef-
forts to locate nonfootball-playing employment. Con-
sequently, there is net backpay of $383 for the fourth cal-
endar quarter of 1984. For the following calendar quarter
there is a $131 computational disparity and, in light of the
evidence, I conclude that gross backpay should be $3450.
Since the parties agree that interim earnings for this quarter
are $3176, less $315 in expenses incurred to generate it, net
backpay figure for the first calendar quarter of 1985 amounts
to $590. Due to McCullum’s income as director of the state
traffic safety commission, his interim earnings for the re-
maining quarters of the backpay period exceed the gross
backpay amounts from personal appearances that he would
have earned during those same quarters, even deducting the
expenses of generating that interim income. Therefore, total
net backpay for the entire backpay period is $134,899.
[Recommended Order omitted from publication.]