Nordstrom v. National Labor Relations Board

984 F.2d 479, 299 U.S. App. D.C. 349, 1993 WL 15131
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 2, 1993
DocketNo. 91-1488
StatusPublished
Cited by1 cases

This text of 984 F.2d 479 (Nordstrom v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nordstrom v. National Labor Relations Board, 984 F.2d 479, 299 U.S. App. D.C. 349, 1993 WL 15131 (D.C. Cir. 1993).

Opinion

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The Seattle Seahawks petition for review of the amount of backpay that the National Labor Relations Board awarded to Sam McCullum, a former player whom the Sea-hawks unlawfully discharged. Finding that its backpay decision is supported by substantial evidence in the record, we uphold the Board in all respects.

I. Background

Sam McCullum began playing professional football as a wide receiver in 1974 and joined the Seattle Seahawks in 1976. It is undisputed that he was unlawfully released by the Seahawks in September 1982 for engaging in union-related activities. See Elmer Nordstrom, Managing Partner, et al. d/b/a Seattle Seahawks, 292 NLRB 899 (1989).

The Seahawks routinely notified all National Football League (NFL) teams of McCullum’s availability. After trying out with the then-Oakland Raiders, McCullum accepted an offer of employment with the Minnesota Vikings. Minnesota released McCullum in May 1984, after McCullum rejected that team’s offer of $203,500 for the 1984 season. McCullum, who had not received an offer for 1984 from any other NFL team, wrote the Vikings a formal letter of retirement in order to secure his pension benefits. In the letter he said that [351]*351he did not intend to resume playing for the NFL.

The Board determined that McCullum’s backpay period—that period during which he would have remained employed by the Seahawks but for the Employer’s unlawful discrimination—extended through the end of the 1985 football season. The Board concluded, however, that the backpay award should run only through December 1984, because by that time McCullum had quit searching for suitable employment; he had thus failed to mitigate his damages beyond that point. Elmer Nordstrom, Managing Partner, et al., Supp.Dec. and Order, 304 NLRB No. 78 (Aug. 27, 1991). In this regard, the Board reversed the AU, who determined that McCullum had abandoned his search for employment in September 1984.

Players earn additional income when their team advances to the playoffs. The Vikings went to the playoffs in 1982; the Seahawks went in 1983. The Board found that McCullum’s earnings from the Vikings’ participation in the 1982 playoffs were the fruits of “interim employment” and thus were not deductible from the amount of backpay for which the Seahawks are liable to McCullum. The Board also ordered the Seahawks to compensate McCullum for income he would have received by reason of the Seahawks’ participation in the 1983 playoffs.

The Seahawks seek review of the Board’s determination that the backpay award should extend through the end of 1984 rather than ending in September of that year. The Employer also challenges the Board’s refusal to deduct McCullum’s 1983 playoff earnings from the amount of backpay due him.

II. Analysis

Section 10(c) of the National Labor Relations Act authorizes the National Labor Relations Board to award backpay in order to remedy the effects of unlawful discrimination. 29 U.S.C. 160(c). The General Counsel bears the burden of proof in establishing the backpay period—in this case, the period during which McCullum would have continued to play for the Seattle Seahawks had he not been unlawfully discharged. NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir.1963). That determination need not be highly individualized; the Board need only apply “to particular facts a reasonable formula for determining the probable length of employment.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 901 n. 11, 104 S.Ct. 2803, 2814 n. 11, 81 L.Ed.2d 732 (1984). Because the length of a football player’s career is highly variable with the individual player, however, the inquiry here was of necessity more detailed than in the usual industrial setting.

The General Counsel met his burden of establishing that McCullum would have played for the Seahawks through the 1984 season but for the unlawful discrimination. The Board affirmed the AU’s determination that, looking at the Seahawks’ roster, and McCullum’s experience with Seattle, McCullum would have remained with that team in 1984. In support of its position that the Seahawks would not have retained McCullum for the 1984 season, the Employer argues simply that McCullum lacked the ability to play in the NFL after 1983. At least one team, however, thought otherwise: Minnesota offered to renew McCullum’s contract for 1984, and McCullum failed to play that year only because he rejected Minnesota’s offer as inadequate. We agree with the Board’s determination that the Vikings’ offer, combined with McCullum’s experience with the Seattle system and Seattle’s dearth of wide receivers suffices to establish that the backpay period should extend at least through the end of 1984.

The Employer also argues that because McCullum did not more actively look for employment after September 1984, he failed to mitigate his damages after that point. The Employer bears the burden of proof on this point. Brown & Root, 311 F.2d at 454 (employer has burden “to establish facts which would negate the existence of liability to a given employee or which would mitigate the liability”). McCullum’s agent testified that he made inquiries regarding employment opportuni[352]*352ties into the fall of 1984. McCullum’s availability was widely known due to both these inquiries and Minnesota’s earlier notice to all NFL teams that McCullum would no longer be playing for the Vikings.

Whether McCullum failed to exercise reasonable diligence in pursuing the various employment possibilities open to him is a closer question. McCullum did not try to find employment in the United States Football League, but that was not unreasonable because the 1984 USFL season was almost over when McCullum was released by the Vikings. We are more troubled by McCullum’s failure to seek alternative employment in the Canadian Football League. We agree with the Board, however, that at least for the limited time between his waiver by the Vikings and the end of 1984 it was reasonable for McCullum to look for employment only in the NFL, where he had played his entire career and where his prospects seemed brightest. To be sure, an employee may need to lower his sights after a time, but the Board may resolve any reasonable doubt about the length of that time in favor of the innocent employee. See NLRB v. Madison Conner, 472 F.2d 1307, 1321 (D.C.Cir.1972). Thus, we need not decide today whether the duty of mitigation ever entails an obligation to seek employment in a foreign country. We therefore affirm the Board’s determination that McCullum made “reasonable exertions” by indicating his desire for an NFL position and then, when no employment opportunities were immediately forthcoming, waiting as the season progressed to see whether any NFL team would hire him to replace an injured player. See NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318 (D.C.Cir.1972).

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Nordstrom v. National Labor Relations Board.
984 F.2d 479 (D.C. Circuit, 1993)

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Bluebook (online)
984 F.2d 479, 299 U.S. App. D.C. 349, 1993 WL 15131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nordstrom-v-national-labor-relations-board-cadc-1993.