Seattle Seahawks

SEATTLE SEAHAWKS Elmer Nordstrom, Managing Partner, et al , d/b/a Seattle Seahawks and National Football League Players Association Case 2-CA-19101 February 8, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 23, 1983, Administrative Law Judge Bernard Ries issued the attached decision The Respondent filed exceptions and a supporting brief, the General Counsel filed a brief in reply to the Respondent's exceptions, the Charging Party filed cross-exceptions and a supporting brief, and the Respondent filed a brief in answer to the Charging Party's cross-exceptions The Respondent also filed a motion to disqualify i and the Charging Party filed a response opposing the motion The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recommended Order as modified 3 This is a factually complex case In its exceptions to the judge's decision, the Respondent attacks not only the judge's factual findings but also the legal standards that he applied We are satisfied that the judge applied the appropriate standards and that his factual findings are supported by the record, but we address below certain of the Respondent's specific objections and the views of our dissenting colleague 1 The Respondent challenges the judge's formu- lation of the test for determining whether the deci- sion to release Sam McCullum violated Section 8(a)(3) of the Act Specifically, the Respondent contends that the judge failed to apply the Wright Line4 test and that this failure is demonstrated by his use of the terms "in part" and "predominant motive," in describing what the General Counsel must prove as to unlawful motive before the ' The Respondents motion to disqualify Member Zimmerman and his staff from participating in the consideration of this case is moot 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 8 We find that a broad remedial order is not warranted in this case See Hickman Foods 242 NLRB 1357 (1979) 4 251 NLRB 1083 ( 1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) 899 burden shifts to the Respondent either to rebut the General Counsel's case or to show, as an affirma- tive defense, that the action in question would have been taken in any event, whether the Respondent was motivated by the employee's protected activi- ties We disagree It is true that in Wright Line, supra, the Board rejected "in part" and "dominant motive" tests, but it did so because those earlier tests of the lawful- ness of a particular employment decision stopped with the conclusion whether the decision was dominantly or "in part" motivated by discriminato- ry sentiments 251 NLRB at 1087 The Board changed to a test under which, after the General Counsel had presented evidence "sufficient to sup port an inference that protected conduct was `a motivating factor' in the employer's decision," the Respondent could avoid liability by demonstrating, as an affirmative defense, that "the same action would have taken place even in the absence of the protected conduct " Id at 1089 In the Supreme Court's subsequent endorsement of the Wright Line test in NLRB v Transportation Management Corp, 462 U S 393, 400-403 (1983), the Court made clear its understanding that the significant change in the Board's test was not the characterization of the General Counsel's initial burden, but rather the ad- dition of a new step by which the Board was re quired to consider an employer's affirmative de- fense even when the presence of unlawful motiva- tion had been established Thus, the Court saw "substantial or motivating factor" as nothing more than the way the Board now "puts it" in describing the General Counsel's initial burden Id at 401 5 It is incontestable that the judge, notwithstand ing his occasional use of the term "in part" to de- scribe the extent of the Respondent's unlawful mo- tivation, found that antiunion considerations were a motivating factor in the decision that produced McCullum's release, and that he fully considered the Respondent's Wright Line defense We there- fore find that his analysis fully comports with the Wright Line standard 2 The Respondent has also excepted to the judge's implicit finding that certain remarks that Sam McCullum made in his role as the team's player representative at a February 19, 19826 press conference and that produced negative reactions from both the team's general manager, John Thompson, and its head coach, Jack Patera, are in 5 The Court also indicated that it viewed these terms as interchange able with the phrase played a role which was used to describe the pro scribed motivation in Mt Healthy Board of Education v Doyle 429 U S 274 (1977) the decision in which the Board had followed in devising its Wright Line test Transportation Management supra 462 U S at 403 6 Unless otherwise stated all dates are in 1982 292 NLRB No 110 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fact protected under Section 7 of the Act In par ticular, the Respondent argues that McCullum's ex- pression of his view that team doctors, whom he saw as identified with management, released in- jured players for games too soon, when the players were not fully recovered, constituted "disloyal" disparagement of the employer, which, pursuant to the theory of NLRB v Electrical Workers IBEW Local 1229 (Jefferson Standard), 346 U S 464 (1953), is not protected activity under Section 7 The Respondent also argues, regarding the "soli- darity handshake" episode, that any hostility would naturally be against the Union-as the author of this activity throughout the league-rather than against McCullum We disagree with both conten Lions a In Jefferson Standard, the Supreme Court held that a union's public attacks on the quality of the employer's product were not protected under Sec tion 7, in which they had no connection with the employee's working conditions or any current labor controversy It seems indisputable, however, that the relative haste with which injured players are returned to the football field is a matter that di rectly affects the players' working conditions Al- though McCullum's views may have been exagger- ated or not soundly based, that does not withdraw the protection of the Act from them Indeed, em- ployees and employers frequently differ greatly in their views whether the employees are properly treated b We do not mean to suggest, of course, that it was unlawful for either Thompson or Patera to take issue with McCullum' s statements The fact re mains, however, that McCullum established himself at this press conference as a fairly aggressive union spokesman McCullum's role as player representa- tive was highlighted again when he and two other players approached Patera in August to apprise him of the players' intention to support the Union's "solidarity handshake" plan by engaging in such a handshake with the opposing team in the upcoming August 13 game with St Louis Although it was another player who mentioned the "union sohdan- ty" symbolism of the handshake, it was McCullum who-after Patera had expressed his opposition- said that the players might go ahead and do it anyway We agree with the judge that Patera's prediction of the subsequent fines ("I'll fine you as much as I can") and the heavy fines that the Re spondent sought to impose reveal animus toward union activity for which, at this point, McCullum was the obvious focus on the team Thus, we see no ment in the Respondent's argument that, be cause the solidarity handshake was an activity planned by the Union, the Respondent' s animus had nothing to do with the individual Seattle play- ers who participated It was those players whom the Respondent sought to fine (a fine averted only because the Management Council ordered rescis sion after an unfair labor practice charge was filed) It was McCullum who had vowed to go through with the handshake after Patera said he opposed it 3 The Respondent attacks the judge's discredit- ing of Patera-which is essential to his findings of unlawful motive-by insisting that it rests funda- mentally not on observations of witness demeanor, but rather on a flawed logical analysis of the plau sibility of Patera's account of an urgent search, be- ginning as early as January 1982, for a "deep threat" wide receiver We do not agree that the judge's logic is fatally flawed, but in any event it is apparent that the judge's decision is based in part on his observation of Patera, who he found `not one of the most impressive witnesses at the hear mg" Thus, for example, the judge saw and heard Patera testify that he was merely "bothered" by McCullum's remarks at the February 19 press con- ference, but the judge found that Patera's reaction had been "considerably stronger than that " (The judge found his impression corroborated by Pa- tera's later involvement in the fines for the solidari ty handshakes) Similarly, on the question whether Patera and Rhome had jointly agreed prior to the trade for Carr that McCullum was to be released if the trade went through, the judge was clearly in fluenced by the manner in which this testimony "popped out" of Patera on cross-examination We, of course, recognize that the judge s evalua- tion of all the testimony was influenced by his view of how it fit together logically or failed to do so, but we are necessarily reluctant to disregard the demeanor component of credibility resolutions by a trier of fact See, e g, NLRB v Hawkins Construc- tion Co, 857 F 2d 1224, 1228 (8th Cir 1988)(cnti cizing Board for allegedly overruling judge's credi- bility finding), Ewing v NLRB, 732 F 2d 1117, 1122 (2d Cir 1984) (same) We therefore decline the Respondent's invitation to reverse the judge's assessment of the credibility of Patera's testimony 4 Finally, we address two of the Respondent's arguments concerning alleged inconsistencies be- tween the judge's factual findings and the record evidence These are both matters raised also by our dissenting colleague a First, the Respondent argues that a finding that it was seeking to obtain Carr to nd itself of McCullum is inconsistent with the evidence that the Respondent had declined to accept Baltimore's offer of Carr in late spring for a first round draft SEATTLE SEAHAWKS 901 choice, that it had declined another Baltimore offer in August for a "high" draft choice, and that the Respondent had even toughened its position by in- sisting on September 2 that it would give up only a fourth-round draft choice for Carr We do not see that conduct as inconsistent with the judge's moti- vation finding for the reasons essentially given by the judge An employer may harbor an unlawful intent to rid itself of a troublesome employee, but still wish to do so on the most advantageous terms possible Furthermore, the testimony of the Respondent's own witnesses shows that they reasonably believed that Baltimore wanted to be rid at all costs of the injury-prone Carr, particularly in August, by which time he had missed a preseason minicamp and com- mented to the press about his dissatisfaction with Baltimore The Respondent knew that Baltimore would willingly take a fourth-round draft choice if that was all that was offered Thus, the Respond- ent's conduct of negotiations with Baltimore is not at all inconsistent with a desire to make a trade that would produce an apparent justification for re- leasing McCullum b The Respondent also contends that the judge's findings concerning Patera's influence over the re lease of McCullum are inconsistent with evidence concerning the role of Seattle's offensive coordina- tor, Jerry Rhome, in the decision to release McCul lum, and the role of the team's owner, John Thompson, and its director of football operations, Michael McCormick, in the decision to acquire Roger Carr just prior to McCullum's release We see no fatal inconsistency It is undeniable that Rhome was responsible for rating the wide receivers throughout training camp and the preseason games and that Patera would reasonably take seriously his judgment, after the Carr-trade, that McCullum should be released rather than Steve Largent, Byron Walker, or Paul Johns But it is clear from Rhome's testimony that he was not consulted about the desirability of having Carr, as opposed to McCullum, at the point in the season that Carr was finally acquired Thus, Rhome testified that he could not rate Carr be- cause he had not seen him play very recently Rhome obviously approached the evaluation proc- ess with the realization that Carr was not for cut tang As he testified, "You can't just eliminate Roger Carr because you just got through trading for him " Hence, having Carr as one of the wide receivers going into the new season was essentially imposed on Rhome by the trade He made no con- sidered judgment that an injury-prone player who had not participated in any training camp that summer and did not know Seattle's system of of- fensive plays would be more valuable than McCul lum Although Carr's name was first mentioned by McCormick when he joined the Respondent's or- ganization in March and the initial decision to make inquiries about Carr occurred after a conver sation among McCormick, Patera, and Thompson about the matter, Patera made the initial call, while subsequent negotiations with Baltimore were car- ried out first by McCormick and later by Thomp- son But Patera's role was crucial As Thompson testified, Patera was the one to decide who would make the team Given the time at which Carr was finally acquired-just before the opening of the season-it was clear that, as Rhome recognized, ac- quiring him meant bringing him onto the team Nothing in the record suggests that efforts to ac- quire players would have been made without con- tinuing consultation with the head coach Thus, it had to be up to Patera whether negotiations to ac- quire Carr would continue just before the start of the season, when cuts were to be made Contrary to our dissenting colleague, we do not rely simply on an absence of evidence as to Patera's role in the acquisition of Carr We rely on admissions of the Respondents' own witnesses that Patera determined who would be on the team (testimony of Thomp- son) and that the trade for Carr, given its timing, was tantamount to a decision that Carr would be on the team (testimony of Rhome) We then find that there is no record evidence contradicting the clear implication of those admissions considered to- gether, namely, that Patera's views were necessari ly taken into account in the decision to make the trade just before the regular season was to begin Given the reports that Rhome says he made to Patera about the progress of players Walker and Johns in the training camp and preseason games, the continued pursuit of Carr is suspect McCullum was rated a very good wide receiver in many re spects-allegedly all except for the ability to go deep and catch "the bomb " But this was an area in which Johns and Walker were now rated highly, so the need to obtain Carr for that particular skill was diminishing rapidly according to the Respond ent's own witnesses The Respondent simply has not shown that the acquisition of Roger Carr on September 3 would have occurred even in the absence of the animus of the Respondent's management-most notably, but not solely, the animus of Patera-against McCul- lum as an outspoken representative of union senti- ment on the team The animus against the Union's solidarity had been powerfully expressed, but thwarted in August, when the Respondent imposed fines for the "solidarity handshake" that greatly ex- 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceeded those imposed by any other NFL team and then was forced to rescind the fines The opportu nity for the Respondent to rid itself of the most visible team symbol of that solidarity was finally seized on in September through the acquisition of Carr ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Elmer Nordstrom, Managing Partner, et al, d/b/a Seattle Seahawks, Kirkland, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following as paragraph 1(b) "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act " 2 Substitute the attached notice for that of the administrative law judge MEMBER JOHANSEN, dissenting At issue in this case is whether the Respondent's releasing of wide receiver Sam McCullum violated Section 8(a)(3) and (1) of the Act Unlike my col- leagues, I would reverse the judge's finding of a violation and dismiss the complaint For reasons fully set forth by the judge, I agree that the General Counsel made out a prima facie case warranting an inference that McCullum was released for his union activity However, unlike my colleagues and the judge, I find that the Respond- ent established that it would have released McCul- lum even in the absence of his union activities i In essence, I cannot accept the finding of my colleagues and the judge that the Respondent un- dertook its laborious efforts to acquire wide receiv- er Roger Carr from the then Baltimore Colts to give itself justification for releasing McCullum Rather, it is clear to me that the Respondent estab- lished that McCullum's release was precipitated by the Respondent's having acquired Carr to better its team and on terms very advantageous to the Re- spondent and by the improving performance of wide receivers Paul Johns and Byron Walker In so finding, I rely in particular (1) on evi- dence-none of which the judge discredited-con- cerning the important roles played by Mike McCormick, the Respondent's director of football operations, John Thompson, the Respondent's gen eral manager, and Jerry Rhome, the offensive coor- 1 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) approved in NLRB Y Transporta non Management Corp 462 U S 393 (1983) dinator, in the events leading to the decision to let McCullum go, (2) on the fact that the events lead- ing to the trade were set in motion when McCor- mick arrived to take up his position, many months before McCullum's prominent union activity, (3) on the logic of the decision to pick McCullum, rather than one of the other four wide receivers, to be let go, and (4) on the Respondent's tactics in negotiat- ing with the Baltimore Colts to obtain Carr tactics that were inconsistent with a fixed plan to assure the departure of McCullum Sam McCullum began his NFL career in 1974, following his selection by the Minnesota Vikings in the annual college draft Two years later, the league was expanded and the Seattle franchise was established The Respondent acquired McCullum from Minnesota McCullum was one of the Re spondent's two regular starting players at the wide receiver position from 1976 through the 1981 season Jack Patera was the Respondent's head coach during that entire time As fully set out in the judge's decision, McCul- lum was selected by his teammates as the union player representative in 1981, and he began taking a prominent role in the Union's affairs in February 1982 McCullum's union activities during 1982 ulti- mately resulted in serious animosity between McCullum and his coach, Patera McCullum was a starting player in each of the four 1982 preseason games On the day of the final preseason game, September 3, the Respondent ob- tained wide receiver Roger Carr in a trade with the team then known as the Baltimore Colts This brought the Respondent's number of players for the wide receiver position up to five-one more than the Respondent customarily maintained on its final active player roster On September 7, the final day for NFL teams to bring their player comple- ment down to the number allowed for the final active list, the Respondent placed McCullum on waivers This released McCullum from his contrac- tual obligation to play for the Respondert and al- lowed any other NFL club to claim his services by assuming his contract Mike McCormick had assumed his duties as the director of football operations in the Respondent's organization on March 15, 1982, just after having served for 2 years as the Baltimore Colts' head coach One of the first tasks of his new job was to review the Respondent's game films and evaluate the team's strengths and weaknesses Within a week of his arrival McCormick and Patera dis- cussed personnel, specifically which Colt players might be available and helpful to the Respondent SEATTLE SEAHAWKS 903 McCormick named four possibilities,2 ranking Carr at the top of the list During that March meeting Patera asked McCormick to contact Baltimore to inquire regarding their interest in trading any of these players Thereafter, McCormick phoned Bal- timore General Manager Ernie Accorsi and asked specifically about Carr Accorsi, however, was not willing to discuss possible trades until after the col- lege draft in late April In mid-May, Accorsi contacted McCormick re- garding a trade involving Robert Pratt, one of the four players McCormick had inquired about earli- er McCormick suggested a Pratt-Carr combination trade, offering McCullum and a draft choice or a combination of Seattle players in exchange for the two Colts Accorsi would not discuss Carr at that time and no deal was made During the course of the summer, talks between the teams continued Accorsi began discussing Carr when Carr's desires to leave Baltimore became publicized However, because of widespread interest in Carr from around the league, Baltimore's asking price was high-a first-round 1983 draft choice-and the Respondent was unwilling to pay so dearly 3 Because of McCormick's lack of progress with Accorsi in the Carr matter, trade talks for the Respondent were taken over by Thompson in about the second week of August 4 In an August 20 conversation between Thomp- son and Accorsi, Accorsi asked for the Respond- ent's best offer by August 23 Accorsi stated that Baltimore was not willing to settle for a 1984 draft choice or any of the Respondent's veteran players because they still believed that they could obtain a first round 1983 draft pick for Carr Thompson ad- vised Accorsi that the Respondent had gone over this again and again and that it could not agree to meet Baltimore's price Accordingly, the Respond- ent allowed the August 23 deadline to pass On August 27, Accorsi called Thompson, telling him that no deal for Carr had yet been worked out, that the Colts still wanted a 1983 draft selection for him, and that all interested teams were being so ad- vised The Colts established a second deadline of August 30 for receipt of such an offer The Re- spondent again allowed the deadline to pass with- 2 The four players McCormick named were Carr Ray Donaldson Wade Griffin and Robert Pratt The Respondent consummated a trade for Pratt in July 1982 2 According to General Manager Thompson who had final authority in all trade matters the Respondent was not willing to give up a high draft choice in 1983 for Carr but would consider a high 1984 choice or a lower 1983 choice combined with a current player 4 Although Thompson rather than McConnick was the management representative who eventually arranged the deal that brought Carr from Baltimore to Seattle McCormick s role in the trading process was signifi cant He initiated the trade talks and his participation in the ensuing ne gotiations set the stage on which the trade was made out raising its offer for Carr On September 1 Ac- corsi contacted Thompson, again telling him that no acceptable offer for Carr had been made On September 2 Thompson and Accorsi spoke several times Thompson told Accorsi that the Respondent was lowering its previous offer because Carr was not worth as much at this point-so close to the final cut date and the opening of the regular season Carr would not have much opportunity to acquaint himself with the Respondent's program Thompson testifies that he sensed that the Colts were beginning to "panic" because they were not getting what they wanted for Carr, and thus were in a weakened bargaining position Thompson then offered Accorsi only a fourth-round 1984 draft choice On September 3, following the approval of others in the Colts' management, the Baltimore team agreed to accept the Respondent's fourth- round 1984 draft choice (an offer that would be im proved if certain performance standards were met by Carr) in exchange for Carr Despite the undisputed facts regarding the timing and progress of the Carr-trade talks-notably the early initial efforts of McCormick, the hard bar gaining techniques of Thompson, and the absence of any role in the process by Patera-the judge and my colleagues nevertheless conclude that the Carr- acquisition was central to a carefully designed pre text to justify McCullum's elimination I cannot agree The judge's analysis is flawed by his failure to account for Patera's lack of participation in ef- fecting the trade 5 The judge imputed Patera's ap- parent hostility toward McCullum to the Respond ent generally By so doing, however, the judge ig- nored the fact that the Respondent did not stand accused of having committed any unfair labor practices independent of the McCullum discharge, and that there is no union animus on the part of those within the Respondent's organization, i e, McCormick and Thompson, who actually played a direct personal role in the Carr acquisition 6 The judge's analysis also too readily discounts the fact that the attempts to deal for Carr were ini- tiated right after McCormick joined the Seattle or- 5 I question my colleagues finding that Patera s role in obtaining Can was crucial To the contrary McCormick and Thompson played cru cial roles My colleagues in support of their finding state Nothing in the record suggests that efforts would have been made without continu ing consultation with the head coach Surely this absence of evidence does not establish as it was the General Counsel s burden to do that Pa tera s role was crucial 6 McCullum s union activities included a February 1982 press confer ence at which he inter alia voiced support for the Union and criticized team doctors for allegedly sending injured players out to play Thompson publicly responded that McCullum s allegations about the team doctors were insulting However Thompson s public response to McCullum displayed disapproval of McCullum s specific accusation against the doc tors rather than of animus toward McCullum as union spokesman Also see Dr Phillip Megdal D D S Inc 267 NLRB 82 (1983) 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ganization after leaving the Colts, and well in ad vance of McCullum's most "anti-Patera" confronta- tion, i e , the "solidarity handshake" incident, 7 and it leaves unexplained the unwillingness of the Re- spondent's trade negotiators to conclude the Carr- deal quickly so as to assure an excuse for dismiss- ing McCullum Indeed, it was the Colts who, in the end, were the party most eager to make a trade for Carr It was the Colts, not the Seahawks, who backed down from their earlier demands and agreed to a trade that brought them less than they had sought If, as the judge found, the Respondent had traded for Carr primarily to furnish itself with a basis for getting rid of McCullum as a union ac- tivist, then logic dictates that the Seahawks would have been the party more anxious to conclude a deal 8 Yet the Seahawks twice passed by Colt deadlines for trading for Carr 9 The judge's analysis also does not refute the Re- spondent's evidence that it cut McCullum for sound business reasons In this regard, as with the Carr-acquisition itself, the judge again overempha- sized Patera's responsibility in the selection proc- ess By the time the protracted trade negotiations for Carr came to fruition, the Respondent was facing a deadline when it had to reduce its roster to 49 players The judge determined that this proc- ess was tainted by Patera's anti-McCullum, antiun- ' As fully detailed by the judge McCullum was a leader in August 1982 in the decision and effort to have all players shake hands before a preseason game to show their union solidarity Patera vigorously opposed the players decision to have a solidarity handshake 8 My colleagues disregard the Respondents posture in regard to ob taming Carr by noting An employer may harbor an unlawful intent to rid itself of a troublesome employee but still wish to do so on the most advantageous terms possible This comment in my judgment misses the point The Respondents course of conduct amply demonstrates that it was acting for legitimate business reasons-and not acting precipitously or illogically to create a justification for an unlawful act 9 The judge s reasons for downplaying the Colts lowering the price for obtaining Carr-no other team had been willing to meet the Colts original demands and the Respondent as a result was aware of its im proved bargaining position vis a vis the Colts-are not persuasive The point is that regardless of the reasons for Carr s coming at a cheaper price it was the Colts who were anxious to make the deal It is also clear that Carr given the esteem in which he was held as a wide receiver by all the witnesses who testified about his ability was a superior talent whose acquisition by the Respondent appeared to constitute an improve ment to the team s receiving corps Thus the judge s further noting that the final price to the Respondent would increase if Carr s performance met certain conditions does not offset the fact that the Respondents pa tience was antithetical to a motive to get Carr to rid itself of a union rep- resentative Similarly I see no basis for my colleagues statement that the Respond ent knew that Baltimore would take a fourth round choice if that was all that was offered Thompson admitted he believed that Baltimore was concerned that it had not received anticipated offers for Carr but cer tainly he did not know what course of action the Colts would take Fur ther assuming Baltimore would accept a fourth round pick Thompson s patience could have resulted in Baltimore accepting a fourth round pick from another club-perhaps from a team projected to have a worse record and thus a higher fourth round pick than the Seahawks In any event the point remains that Baltimore bowed to Seattle s position in consummating the trade and this weighs heavily against a finding of pre text ion attitude He discredited several portions of Pa- tera's testimony concerning the team's needs and the relative strengths and weaknesses of various players because of this finding of overriding taint Although I would not overturn the judge's credi- bility resolutions, I find that he failed to account fully for the role of the Respondent's offensive co- ordinator, Jerry Rhome, in the decision to let McCullum go During training camp, and prior to the trade, Rhome evaluated on a weekly basis the wide re- ceivers As recounted by the judge, Rhome's week by week evaluations of McCullum declined while, in comparison, those of Walker and Johns im- proved Rhome testified that, following the Carr trade, Patera held meetings with his assistant coaches to discuss personnel matters Patera, Rhome, offensive line coach Howard Mudd, and backfield coach Andy MacDonald met on 3 consecutive days im mediately prior to the final-cut deadline to evaluate the players Rhome took the lead in the discussion of wide receivers His first question to Patera con- cerned Walker, a rookie free agent who had favor- ably impressed Rhome throughout the preseason Patera replied that Rhome should rate the wide re ceiver corps himself rather than ask for Patera's views Rhome then proceeded to rate Largent as their star He stated that he could not rate Carr because he had not seen him play in preseason He declared that Johns, Walker, and McCullum were very close, but that he would take Walker over McCul- lum Rhome testified that he had earlier told Patera that Johns should probably be given the starting position over McCullum Rhome also testified that retaining five players at the wide receiver position would not have been tenable because the extra re ceiver would cost the team a player at another slot, the team could not afford cutting back on the strength of their offensive line, the possibility of an injury to a quarterback precluded having only two at that position, the tightend position was thought to require three active players, and the Respondent had traditionally carried just four wide receivers Rhome averred that his fellow assistant coaches agreed with his assessment on the number of re- ceivers that should be carried Rhome further com- mented that in any event McCullum was not likely to be happy in a backup role, spending the bulk of the gametime on the bench Rhome stated that the decision boiled down to a choice between McCul lum and Walker and that developing the potential of a youthful Walker was an appealing prospect for the team SEATTLE SEAHAWKS After giving his perspective to Patera the deci- sion to terminate McCullum seemed logically to emerge (1) Largent, as the Respondent's premier wide receiver, would obviously be kept, (2) Carr would be retained because of the trade for him had just been effected,10 (3) Johns was projected as a probable starter over McCullum, (4) Johns was needed as the punt returner-a matter independent of his role as wide receiver, (5) Walker displayed promise as a young talent with his best playing years ahead, and (6) McCullum's starting role was challenged and he was facing the declining years of his playing abilities The judge minimized Rhome's role in the deci sion to release McCullum, stating that, to be effec- tive, any "decision" by Rhome'' concerning player personnel had to be approved by Patera and that Patera had previously made up his mind that McCullum was going to be released There is no evidence, however, that Rhome's evaluation of the receivers was not reached independently of Patera, or that it was based on anything but Rhome's judg- ment of the five receivers' talents and their suitabil- ity to the team's receiving needs Consequently, that Patera might have been pleased to accept and act on Rhome's decision because he was predis- posed to release McCullum would not be inconsist- ent with Rhome's account of the basis for his rec- ommendation and the role that he played for his recommendation and the role that he played in McCullum's departure See, e g, NLRB v Fibers International Corp, 439 F 2d 1311, 1314 (1st Cir 1971), Klate Holt Co, 161 NLRB 1606, 1612 (1966) Moreover, Patera's predisposition to drop McCul- lum from the team cannot be viewed as engraved in stone Patera was not faced with a decision by Rhome to retain McCullum over Walker I do not know what Patera would have done in that situa tion and I refuse to speculate whether he would have acted in accord with his predisposition I do know, however, that Rhome had decided that McCullum was the most expendable of the receiv- ers, that Rhome had so informed Patera, and that Rhome's decision was given effect 12 10 The judge in reviewing the exhaustive evidence presented concern mg the ratings applied to a number of NFL wide receivers himself ad mitted that Carr was likely a better all round wide receiver than McCullum 11 The judge notes that Rhome s testimony at the hearing was that the decision concerning McCullum basically was his The judge seems to have concluded that Patera viewed any such decision more as a recom mendation from Rhome Whether Rhome had the authority to make the decision or merely to recommend the action to be taken the result here would be the same I therefore have used Rhome s terminology in re counting his role 12 My colleagues dismiss Rhome s role by stating that Rhome made no considered judgment that an injury prone player [i e Carr] who had not participated in any training camp that summer and did not know Se attle s system of offensive plays would be more valuable than McCul 905 For all the foregoing reasons, the Respondent's choice of McCullum as the expendable player emerges as one based on a business judgment of the team's personnel needs that would have been made even in the absence of antiunion motivation Ac- cordingly, I find that the Respondent has met its Wright Line burden and I would reverse the judge's conclusion that the Respondent's termina- tion of McCullum violated the Act lum However the significance of Rhome s role is not limited to any judgment made or not made after the trade regarding solely the value of Carr versus that of McCullum Rather Rhome s evaluations of the wide receivers-both pre and post trade-explain the legitimate business rea sons leading to the Respondent s overall course of conduct Rhome s in creasingly favorable view of Johns and Walker justified retaining those players rather than McCullum Indeed Rhome s view of Johns-project ing him as a probable starter-led Rhome to project McCullum as a backup a position in which Rhome believed McCullum could not be happy Further Rhome s somewhat diminishing evaluation of McCullum during training camp would reasonably lead the Respondent to proceed in its efforts to obtain Carr (an experienced player unlike Johns and Walker) and thus in this manner Rhome s views would support the Re spondent s ultimate decision to release McCullum In any event the Re spondent placed no restrictions on Rhome in regard to deciding who should be kept and who should be released and therefore his judgment made without animus lends considerable support to the Respondents re buttal case APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge or otherwise discrimi- nate against any employees in regard to their hire, tenure of employment, or any other term or condi- tion of their employment in order to discourage membership in labor organizations WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer to Sam McCullum, if we have not already done so, full and immediate reinstate- ment to his former job, or to a substantially equiva- lent job, without prejudice to his seniority and other privileges, and WE WILL make him whole with interest for any loss of earnings or benefits he may have suffered, and expenses he may have in- curred, by reason of our unlawful discharge of him on September 7, 1982 WE WILL remove from our files any reference to the foregoing discharge and WE WILL notify Sam McCullum in writing that we have done so and 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the discharge will not be used as a basis for future personnel actions against him ELMER NORDSTROM, MANAGING PARTNER, ET AL, D/B/A SEATTLE SEAHAWKS David E Leach III Esq, for the General Counsel Sargent Karch Esq (Baker & Hostetler), of Washington, D C, for the Respondent Richard A Berthelsen Esq, of Washington, D C for the Charging Party DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge This matter was tried in Seattle, Washington, and New York, New York, on May 17-20 and June 6-10, 1983 The complaint alleges that Respondent, a professional football team, violated Section 8(a)(3) and (1) of the Act by dis charging Sam McCullum on or about September 7, 1982 The answer denies the material allegations of the com plaint Posttnal briefs were received from all parties on or about August 5, 1983, and supplemental briefs from Re spondent and Charging Party on or about November 4, 1983 Having given careful consideration to the briefs, having reviewed the entire record, and on my recollec tion of the demeanor of the witnesses, I make the follow ing findings of fact, conclusions of law and recommen dations i FINDINGS OF FACT I THE VIOLATION OF THE SEQUESTRATION ORDER At the beginning of the hearing in Seattle, counsel for the General Counsel made a motion to sequester the wit nesses and I granted the motion with the following ex planation All right we have a motion to sequester, ladies and gentlemen which means that those people in at tendance now who are going to be witnesses in this case will have to remove themselves from the room for the balance of the case, or at least until they tes tify and then we will see what happens after that Mr McCullum will be allowed to stay in the room except at such time as the General Counsel is pre senting testimony which is like the testimony that he is giving or will be expected to give I will expect counsel to monitor the application of this rule and to keep their witnesses out if you see them coming in The General Counsel then inquired, Your honor your ruling will apply equally to the Respondent? I replied, Yes, it applies to witnesses for all parties Thereafter, the Government s testimonial case was presented in Seattle, with the following addition The parties had agreed that, after the first week of hearings (and the anticipated end of the General Counsel' s case), the proceeding would later resume in New York City, where the Respondent would present its witnesses How ever, to accommodate one such witness, Michael McCormick who is a resident of Seattle, the parties agreed that McCormick s testimony could be given out of turn in Seattle, and McCormick testified accordingly When the hearing resumed in New York some 2 weeks later, one of Respondent's witnesses made refer ence to having read the Seattle testimony Further inves tigation revealed that counsel for Respondent had, in the interim, mailed copies of the entire transcript to three of Respondent's most important witnesses former Coach Jack Patera, former General Manager John Thompson, and former Offensive Coordinator Jerry Rhome Patera testified on inquiry that he had read the testimony of the witnesses who appeared during the Seattle portion of the hearing , Thompson said that he had read `all of the ones that were from the Seattle phase of the hearing", and Rhome stated that he didn t really look over all of it," had gust read "mostly about' Sam McCullum and also player Sherman Smith, and had scanned" the testi mony of player Steve Largent At the hearing, the General Counsel and the Charging Party moved to strike the testimony of Patera, Thomp son, and Rhome because of the alleged breach of the se questration rule The action requested would have evis cerated Respondents case, and I deferred ruling on the motion until the point could be briefed and studied Rule 615 of the Federal Rules of Evidence (which are according to Section 10(b) of the Act applicable to unfair labor practice proceedings only so far as practi cable )2 provides At the request of a party the court shall order wit nesses excluded so that they cannot hear the testi mony of other witnesses, and it may make the order of its own motion This rule does not authorize ex clusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney or (3) a person whose presence is shown by a party to be essential to the presentation of the party s cause In Unga Painting Corp 237 NLRB 1306 1307 (1978), the Board reviewed the policy behind the sequestration rule embodied in Rule 615 and found it generally good Hence, upon request of a party we shall continue to ex elude from the hearing room all witnesses who are not alleged discnminatees As to the latter, however, they would only be excluded when "another of the General Counsels or charging party's witnesses is testifying about events to which the discnmmatees have testified or will or may testify, ' in the absence of special circum stances" warranting their broader exclusion i Errors in the transcript have been noted and corrected 2 See Ban & Co 236 NLRB 242 (1978) SEATTLE SEAHAWKS The parties raise two separate issues here whether there was, in law, a breach of the sequestration order and, if so, what should be the sanction for that breach Respondent first argues that ' the letter of the sequestra tion order was not violated, since the order simply in structed prospective witnesses to remove themselves from the room for the balance of the case ' and was "silent on the review of transcripts of testimony " There also was no specific prohibition against witnesses drilling holes in the walls and listening from outside, but one sus pects that counsel would not carry the argument that far In the present case, I conclude that a rule expressed as including the obligation of counsel to keep their wit nesses out if you see them coming in' should have been reasonably understood by experienced trial counsel as precluding the unrestricted access of prospective wit nesses to verbatim transcripts of the proceeding See Miller v Universal City Studios, 650 F 2d 1365, 1373 (5th Cir 1981) But cf US v Smith, 578 F 2d 1227, 1235 (8th Cir 1978), in which the sequestration order provided only for exclusion" of witnesses from the courtroom, and the trial court viewed its order as not prohibiting exposure to the proceedings by other means, allowing a witness who had read notes of the testimony to testify held not an abuse of discretion We turn, then, to the appropriate sanction to apply to a violation of the rule In Holder v US, 150 U S 91, 92 (1893), the Supreme Court appeared to approve the post tion that even a willful breach of the rule by a witness is generally no basis for excluding his testimony If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be ex cluded on that ground merely, although the right to exclude under particular circumstances may be sup ported as within the sound discretion of the trial court Subsequently, some courts have held that the exclusion of a disobedient witness unnecessarily penalizes the inno cent litigant, and have limited the particular circum stances envisioned by Holder as potentially justifying exclusion to those situations in which the defendant or his counsel have somehow cooperated in the violation of the order US v Torbert 496 F 2d 154 157 (9th Cir 1974) Taylor v US 388 F 2d 786, 788 (9th Cir 1967) US v Schaefer 299 F 2d 625, 631 (7th Cir 1962) I have concluded that counsel for Respondent engaged in what should have been reasonably understood to be a violation of the sequestration order I cannot find, how ever, that the testimony of three of Respondents print pal witnesses should be stricken, in view of the following considerations First, with the exception of the testimony of Michael McCormick, what Patera Thompson and Rhome read (or had available to read) was the testimony of witnesses for the General Counsel Wigmore has taken the position that although the separation rule serves a function re garding a witness for one side hearing an opposing 907 witness, '3 it is the collusion of [witnesses for the same party] that is mainly to be prevented" by the rule,4 since, as to such witnesses, the rule is not only preventive but "detective in its effect, i e , it exposes their difference of statement on points on which had they truly spoken, they must have made identical statements This variance of statements is the significant achievement of the wit nesses' separation Id at 1838 Thus, insofar as the violation of the rule principally re sulted in Respondent's witnesses being exposed to the testimony of the General Counsel's witnesses, that seems to me to be a matter of no great substantive conse quence I must say, moreover, that, in Labor Board proceed ings, the rule should be applied to make it possible for a respondents counsel to acquaint his potential witnesses with the substance of the testimony given by the Gov ernment's witnesses This is so because the skeletal plead mg technique and complete absence of discovery in Board proceedings very often means that a respondent has no idea of the character of the evidence against it until the testimony has been elicited at hearing At that point, it may become vital for the respondents counsel to notify a supervisor of the accusations against him, in an effort to generate convincing rebuttal evidence, which can come in all shapes and forms ( I couldn't have hit him with my left hand, both my hands were in casts in March") Professor Wigmore states, ' [I]t would seem ob vious to good sense that the perusal of journals reporting the testimony should be forbidden, 5 but he at the same time might allow repeating hypothetically upon exams nation the possible words of a former witness without suggesting whether he actually used them ( If your husband says is he telling the truth or a falsehood? ) My own opinion is that, in proceedings such as this one it may well become imperative that such consultations and communication of information be had Accordingly, if counsel for Respondent had sought permission to advise his prospective witnesses of perti nent testimony given for the General Counsel on the representation that he had previously been unaware that such testimony would be given, it is likely that I would have waived the rule to that extent 6 This probability does not, of course, detract from my conclusion that counsel violated the blanket prohibition of the existing rule by making the transcripts available to the three wit nesses without requesting permission to do so 3 If the hearing of an opposing witness were permitted the listening witness could thus ascertain the precise points of difference between their testimonies and could shape his own testimony to better advantage for his cause The process of separation then is here purely preventive i e it is designed like the rule against leading questions to deprive the wit ness of suggestions as to the false shaping of his testimony 6 Wigmore Evidence § 1838 (Chadbourn rev 1976) (emphasis in original) 4 Id at § 1840 3 Id at 1840 but citing only the contra authority of Commonwealth v Hersey 2 Allen 173 (Mass 1861) 6 As I also might do at the behest of the General Counsel or a charg mg party who seeks to investigate whether to present rebuttal testimony through a previously absent witness It seems to me that the witness might well have to be acquainted with the testimony sought to be rebut ted if he is to be of intelligent and effective assistance 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The preceding discussion does not, however, account for the fact that McCormick s testimony was among that available to the three witnesses This is a more significant issue After close consideration, I have concluded that it is not a sufficient basis for striking the testimony of the three McCormick s testimony was limited in extent, and I cannot imagine that reading it would have inspired the other three witnesses to reshape their testimony I have no doubt that, as further discussed infra, Patera and Rhome would have praised Roger Carr in any event, and that Patera would have given the same account of the effort to acquire Carr, without having seen McCor mick s testimony, and that is the only important testimo ny given by the latter There are other factors on which I rely here One is that I do not believe that counsel for Respondent con sciously and knowingly circumvented the rule As other counsel and I were aware during the course of this hear ing, and as Respondent's counsel indicated on the record, he was beset by a demanding personal problem, and he probably gave no thought to the implications of the sepa ration rule when he sent the transcripts, as he testified, from New York City to Seattle, Minnesota, and the Dis tnct of Columbia solely as an expedient means of trial preparation " Another factor is that while the sequestration rule is useful, it is not graven in stone In many of the cases I hear, even when the counsel know that there will be contradictory versions of the facts, the rule is not in yoked The rule itself is not airtight Rule 615 permits the continued presence of a natural party, a nonnatural party s representative, and an essential assistant to coun sel, even though all three may be witnesses 7 Under the Unga gloss, the alleged discrimmatee may hear the re spondent's case and then be called in rebuttal In a case such as this, perhaps the more important consideration is the threat to the integrity of the administrative process occasioned by violation of the rule rather than the effect of the violation on the testimony itself but that can be cured by an admonition directed to counsel rather than by aborting the testimony 8 I have saved for last what appears to be the Board s most recent word on this subject In Gossen Co , 254 NLRB 339 (1981), the parties had entered a voluntary arrangement to sequester witnesses in a particular way and the administrative law judge advised them that they were responsible for policing the terms of the agreement The Respondent's counsel thereafter made the transcripts available to eight of his witnesses In denying a motion to strike the testimony of these witnesses, the administra tive law judge relied on (a) the fact that the separation arrangement was not embodied in an order issued by him, (b) provision of the transcripts was only a form of trial preparation, which the system authorizes and en courages (c) there was no showing that the witnesses consulted with one another', and (d) the record gave no indication that reading the transcripts had altered any The first exception is probably constitutionally premised 8I give no weight here to the fact that the hearing was reported at some length in the Seattle newspapers There is no evidence that Patera who apparently was in Minnesota during this period or Rhome who was in the District of Columbia had any access to the reportage testimony Id at 343-344 In affirming the ruling the Board held (id at 339 fn 1) Under the particular circumstances of this case, par ticularly since the parameters of the sequestration arrangement had not been precisely defined and since, in assessing credibility, the Administrative Law Judge was aware that some witnesses had read portions of the transcript prior to testifying, we agree with the Administrative Law Judge that it was not necessary to exclude the testimony of such witnesses However, in adopting the Administrative Law Judge s ruling on this point, we are not en dorsing the proposition that showing portions of the transcript to prospective witnesses who have been sequestered is warranted as part of trial preparation Thus, the Board refused to endorse' the showing of transcripts to sequestered witnesses I have not endorsed that practice either, except, as indicated, on a request for permission and a showing of need However, while I thus find that the rule was violated, I think that a formal admonition to counsel is sufficient sanction Compare US v Womack, 654 F 2d 1034, 1040 (5th Cir 1981) 'In order to justify reversal for violation of the sequestration rule, the defendant must show sufficient prejudice Having considered all the testimony, I can find no evi dence of prejudice here II THE APPLICABLE STANDARD OF PROOF Three years ago in Wright Line, 251 NLRB 1083, 1089 (1980), the Board announced the following causa tion test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer mo tivation" First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision Once this is es tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct After a mixed reception in the courts of appeals, Wright Line recently received approval from the Su preme Court in NLRB v Transportation Management Corp, 462 US 393 (1983) One very important holding of Transportation Management Corp is that ` to establish an unfair labor practice the General Counsel need show by a preponderance of the evidence only that a dis charge is in any way motivated by a desire to frustrate union activity, or, as otherwise stated, that the General Counsel has the burden of persuasion on the question of whether the employer fired [the employee] at least in part because he engaged in protected activities' Id at fn 5 (emphasis added) It could be said that there is one small remaining prob lem, and that has to do with the concept of the prima facie case That phrase was used by the Board four times in explaining its formulation in Wright Line In Transportation Management Corp however, the Supreme SEATTLE SEAHAWKS 909 Court does not employ the phrase, it instead character izes, and approves, the Board s holding as follows [The Board] determined that the General Counsel carried the burden of persuading the Board that an antiunion animus contributed to the employers de cision to discharge an employee, a burden that does not shift, but that the employer, even if it failed to meet or neutralize the General Counsel's showing could avoid the finding that it violated the statute by demonstrating by a preponderance of the evi dence that the worker would have been fired even if he had not been involved with the Union Although the Board in Wright Line surely meant, as the Supreme Court implied in Transportation Manage ment, to use the term prima facie in the sense in which the Court speaks (of an unshifting burden of persuad ing ), prima facie more often in the law seems to be em ployed in a procedural sense, referring to the strength of the evidence produced by a proponent at some stage short of a final determination that the proponent has or has not satisfied his burden of persuasion See 9 Wig more, Evidence § 2494 (3d ed 1940) Since Wright Line, the Board has sometimes discussed the prima facie analy sis in terms sounding in that procedural sense rather than in the ultimate terms of burden of persuasion Of particu lar interest is Associated Milk Producers, 259 NLRB 1033 (1982), in which, even though the Board dismissed the case itself, it went out of its way to reverse the holding of an administrative law judge that the General Counsel had failed to establish a prima facie case In spelling out the requirements of such a case, the Board stated (at 1035) The elements of protected activity on the part of the discharged employee, employer knowledge of the protected activity, and employer animus toward the Union taken together, are sufficient to establish a prima facie case of unlawful discharge This test is not a difficult one to meet in most cases it was apparently satisfied in the present case 9 Whether the Board was thinking in procedural terms or in burden of persuasion terms, in so applying the prima facie stand and is debatable But, in any event, it does not appear that, at this juncture, it is appropriate to examine the evi dence for the existence of a prima facie case in the more traditional sense The Supreme Court has recently rester ated that, under Title VII analysis, a (traditional) puma facie case merely creates a rebuttable presumption' of unlawful discrimination a presumption that drops from the case once the defendant has responded to the plain tiffs proof, and the Court further held that when a Title VII case has been fully tried courts need no longer con cern themselves with the preliminary question of wheth er the plaintiff has made out a prima facie case ' but B Compare Professor Wigmore s preferred test for determining whether a nonsuit is in order at the end of the plaintiffs case Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to main tam? 9 Wigmore Evidence § 2494 Cf also McDonnell Douglas Corp v Green 411 U S 792 802 (1973) should rather decide whether the defendant intentional ly discriminated against the plaintiff Postal Service v Aikens, 460 U S 711 (1983) All of which leads me to conclude that, under Trans portation Management the General Counsel must bear the unshifting burden of establishing that the act com plained of here was at least in part ' done because of protected activities If that is shown, the Respondent may attempt to show that the discharge would have oc curred in any event, regardless of the protected activity The General Counsel may, of course, go further and at tempt to prove that the protected activity was the pre dominant motive, thus checking any claim by Respond ent that the action would have been taken for valid rea sons in any event In view of the Aikens case, supra, it does not appear that there is any need at this point to examine the sufficiency of the prima facie case (using the term in its more customary meaning) III THE DISCHARGE OF SAM MCCULLUM Sam McCullum began to play for the Respondent in 1976 He was a starting wide receiver in that year and thereafter through the 1981 season 10 The 28 National Football League clubs bargain collectively with the Charging Party in a multiemployer unit that has been in existence for some years The player representative for each team serves the same function as a shop steward processing grievances disseminating information, and acting in a liaison capacity In October 1981, McCullum became the player representative for the Seattle team and thereafter performed that role with some vigor and prominence On September 7, 1982, shortly before the start of the season, Respondent released McCullum The question presented is what part, if any, McCullum s union activities played in the decision to let him go A Some Background on Sam McCullum and the Seahawks McCullum entered professional football in 1974, when he was drafted in the ninth round of the annual college draft by the Minnesota Vikings 11 In 1976 two new teams-Tampa Bay and Seattle-were added to the Na tional Football League 12 These expansion teams were given the opportunity to select no more than three play ers from each of the existing teams and the latter were allowed to protect a certain number of players against being taken Minnesota chose not to protect McCullum and he was picked by Seattle The coach of the new Se attle Seahawks was Jack Patera he had been a defensive coach at Minnesota during McCullum s 2 years there From 1976 on, McCullum was one of the two starting wide receivers for Respondent starting meaning that they were the first ones on the field when a game was i° The football season begins in September and ends in December 11 The draft is a selection process in which the professional teams ap patently by order of inferiority assert claims to graduating college sen iors Each team is allowed to choose 1 player in each of 12 rounds The right to choose may be traded as later discussed 12 The League is composed of two conferences the American Football Conference and the National Football Conference Seattle is in the former conference 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD played, and played a majority of the game " The other starting wide receiver since 1976 has been Steve Largent The job of a wide receiver is to catch forward passes The two wide receivers on an offensive team are differ entiated to some extent One, who is referred to as the split end, is positioned about 10 yards from the next offensive lineman The other, the flankerback, is one yard off the ball and generally lines up wide to the opposite side of the field from the split end The po sitions are clearly different enough so that they are not wholly interchangeable Duiing 1976-1981, McCullum played only split end and Largent only flankerback, and reserve players apparently tended to substitute primarily for one or the other The record shows, in addition, that the Seahawks and other teams with some frequency emvloy a formation utilizing a third wide receiver In the 1976- 1981 seasons, that would have been Steve Raible, who also back[ed] up both McCullum and Largent, but who seems to have been competing primarily for McCullum s position During this period, various players served as a fourth wide receiver, playing in a reserve capacity 13 In 1981, a free agent -a college graduate who was not chosen in any of the total of 336 picks made in the 1981 college draft-tried out in Seattle s summer training camp and made the team as a reserve wide receiver his name was Paul Johns Thus, at the end of the 1981 season Respondent thought of its basic roster of wide recei ers as consisting of Largent, McCullum, Raible, and Johns 14 Raible, however, was seen, at least by Coach Patera, as unlikely to return to the team for the 1982 season, a prospect that Raible eventually confirmed by officially retiring in June of that year Accordingly, the Seattle coach contemplat ing his roster on January 1, 1982, apparently thought of himself as having three wide receivers for the 1982 season-Largent, McCullum and Johns-and in some question about the fourth At this point we should examine the status of the team and the wide receivers after six seasons of play The won lost experience of the Seattle club for 1976 and 1977 was dreadful For 1978 and 1979 however, Seattle sported identical winning seasons of nine wins and seven losses The years 1980 and 1981 with records of 4-12 and 6-10, were another matter The success of the wide receivers, however did not necessarily track the teams fate Largent is, let it be quickly established if not a superstar, not many light years away He is at least a demigod as demonstrated by 13 The Charging Party s brief asserts that the team had in the past car ned five wide receivers but the record is quite clear that at most there had never been more than four active wide receivers at one time During one period a fifth wide receiver had been carved on the injured re serve list but he would have been ineligible to play until he returned to active duty and at that time if Respondent had the maximum permitted number of players another player presumably would have had to be re leased to accommodate the returning player 14 A wide receiver named Mark McGrath had come to Respondent in 1980 hurt his knee in training camp and been put on injured reserve He was brought back in 1981 to replace the injured Raible When McGrath was hurt again in 1981 Raible came off the injured reserve list to replace him McGrath came to the 1982 training camp but apparently was not considered a real contender by Coach Patera his three time selection for the Pro Bowl (the ne plus ultra of professional football) In 1981 , when the team was plodding to its 6-10 record, Largent made 75 catches, a personal high for his career McCullum, as just about all the witnesses agreed, while a good smart, quick football player, is no Largent Thus while statistics are to be viewed with caution in this arena, i s by way of rough example Largent in 1978 caught 71 passes for an average of 16 5 yards and 8 touchdowns, while McCullum caught 37 for a 14 2 yard average and 3 touchdowns, in 1979, Largent caught 66 passes for a 18 7 average and 9 touchdowns, and McCul lum caught 46 for a 16 1 yard average and 4 touch downs In 1980, however, McCullum blossomed He caught 62 passes (Largent had only 4 more), his best year yet His teammates voted him the most valuable player, an honor that had been alternated in the prior 4 years between Largent and quarterback Jim Zorn The year 1981, as noted, was almost as poor a year for the team as 1980 had been, and I conclude from the record that McCullum s performance was not quite as impressive as the preceding year The evidence shows that, having lost six of its first seven games, Seattle in midseason emphasized a running attack for at least the next four games and, consequently, threw fewer passes in those games (the record is silent about the style of the final five games) For the first seven games, said Coach Patera, McCullum was a `very productive receiver, catch ng about 27 passes and despite the change in strat egy in midseason, his total number of catches for the season was 46 At the hearing, however, McCullum indi cated some personal dissatisfaction with his own per formance in 1981 1981 wasn't quite the year it was in 1980 I d say, uh I dropped approximately 7 passes that year as opposed to dropping two the year before And, uh, I didn t get as many passes thrown but I dropped more than I should have dropped so it wasn t quite the year Paul Johns the rookie free agent receiver who began in 1981, caught only eight passe-, that year The record shows however, that hew as a well regarded prospect as a receiver and also was the second leading punt returner in the AFC apparently a remarkable teat for a rookie The foregoing fairly approximates I think the situa tion as of the end of the 1981 season It seems appropri ate at this point to consider McCullum s union activities and those of the team in 1982 B The Union Activities Respondent's Animus the Discharge and the Aftermath Although there is testimony that, on his election to player representative in October 1981, McCullum imme diately tackled the role more effectively than had his predecessors there is no reason to believe that his enthu siasm came to the attention of club officials until the latter part of February The bargaining agreement cover ing the NFL was to expire in July 1982, and negotiations is As offensive coordinator Jerry Rhome put it Stats can be very misleading You can get lost in numbers SEATTLE SEAHAWKS 911 began in February On February 19 McCullum and four teammates (members of a seven man `team council" that assisted McCullum) held a press conference at which McCullum stated that the Union s bargaining demand for 55 percent of the gross revenues isn t enough, and also said that the chances of a strike were very great McCullum also made some other controversial state ments One was that the team was `well below average" in pay and that salary was a factor in who makes the team Another was a demand that the players be al lowed to choose their own doctors, on the theory that the team doctors were allied with management and, as a result, A lot of [injured] players are put on the field who should never be put on the field' John Thompson, the general manager of the Seahawks since 1976, heard about the press conference from one reporter and called an Associated Press reporter to re spond to McCullum s remarks He said that the statement that injured players were used was insulting and, in answer to a question about the possibility of litigation against McCullum, stated, If I were a doctor, I might sue I know I d take a look at it " Thompson also ques tioned McCullum s assertion about the low salaries of the Seattle players At the hearing, coach Patera testified that he had read the statement about the team using in jured players and he conceded that it had 'bothered' him One other comment made by McCullum at this press conference, to be mentioned later, had to do with a ques tion put to him why only half the Seahawk players had responded to a union survey McCullum replied I think they were the ones who didn t care Maybe the survey was too complicated Everyone knows there are guys in football who can t add two and two and get an answer " McCullum testified that he held about three more press conferences between February and April and also got some press coverage for attending a meeting of the state AFL-CIO around April 27 at which he sought support for the players Patera read of McCullum s at tendance at the latter meeting The third press confer ence was held the day after the state labor meeting to bid goodby to a player named Beeson whose release was announced while he was in attendance at the state meet ing No articles about these events were introduced in evidence It would appear that the principal thing that McCul lum did to set Respondent against him after his appoint ment in October 1981 and until the summer of 1982 (as hereafter discussed) was the outspoken press conference of February 19 Nonetheless, McCullum testified at the hearing that he noticed immediately after becoming the player representative that the club was no longer calling on him to make promotional appearances (which might either be paid or unpaid) as it had in the past He testified on direct that, in 1980 before he became player representative he had made perhaps 20 club spon sored appearances in the off season (the end of January to June 1) and 6 or 7 during the regular season (Septem ber through December), and in 1981 perhaps 15 in the off season and 4 or 5 during the season However, records (which appear to be authentic) maintained by Respondents front office for those years show that in 1980 McCullum was referred by the club to only one en gagement in the period January June 1980 and (as he had approximated) to six from September-December, and in 1981 he attended only six such engagements between January and June (one of which, for the United Cerebral Palsy Association, was probably arranged by McCullum himself)16 and three engagements (all unpaid) between September and December Moreover, the record shows that McCullum attended two functions (for which he was paid a total of $600) in January 1982, although his pretrial affidavit had asserted, Once I became rep I was simply given no more such assignments at all The only other engagement assigned to McCullum between January and June was with 11 other players for a nonpaying function on April 29 He testified, however, that he had informed Patera's secre tary in late February or early March 1982 that he would not be able to appear with the Highlights" film-one of the principal uses to which the players were put in the spring-during the daytime because of another job, but if `there's something comes up at night, where I can go at night close by, then he would be willing to take the en gagement This particular claim of discrimination is a matter of interest mostly for what may be an insight into McCul lum s disposition and temperament One has the impres sion that he was quite nervous about holding the job of player representative, and this could have led to an over developed imagination on his part Thus, his statement that he received 'no more publicity assignments at all after becoming player representative is simply wrong by three McCullum seemed an honest, personable, intelligent man, and considerably more articulate than the transcript shows him to be Nonetheless, given this sort of discrep ancy, I am constrained to scrutinize his testimony with care Respondents training camp in Cheney Washington opened for the veterans on or about July 30 On the first night of camp McCullum went to visit Patera in his room McCullum testified that he asked Patera if we can put the things that have happened with our press conferences and the union and the me being player rep behind us, seeking an assurance from Patera that he was able to divorce the two, I mean me being player representative and me being football player Instead of directly responding McCullum says, Patera replied that he was still angry about McCullum s press conference remark about certain football players not being able to add After some discussion of this Patera brought up his concern that McCullum had not put [his] heart" into the treadmill test which the athletes took annually, McCullum said that he had not done so because he thought the test to be inconclusive Patera said that his 'picking and choosing in this manner was a sign that you re on your way down' Later McCullum again asked to be judged on his own abilities, but assertedly re 16 Respondents brief asserts only three appearances in this period Counsel has perhaps been misled by markings on the exhibit A closer examination also shows in addition to those marked appearances on March 26 and April 7 and 16 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceived no direct answer, being told instead by Patera such things as You ve had a great career with us The conversation lasted some 25 minutes Patera agreed that such a meeting had occurred He said that McCullum had come in asking to clear the air between me and himself regarding his off season activi ties, and to make sure that his activity on behalf of the Union was not going to create any animosity on my part He says that he assured McCullum that he held no animosity against him and there was no air to clear He also agreed that he made reference to McCullum s knock against the intelligence of some of his fellow players, and to McCullum s restrained performance on the treadmill test The point intended by the foregoing testimony of McCullum is that Patera refused to give McCullum as surances that he would not be prejudiced by his union activity Although Patera s testimony became somewhat confusing later on, his initial testimony, quoted above clearly has him agreeing that McCullum asked for an as surance of a lack of animosity and giving a positive reply on that point Whether Patera turned a deaf ear to the specific re quest for a promise that there would be no future ani mosity, which seems to be the burden of McCullum s testimony, is a question to which I have no ready answer At the hearing, McCullum relented somewhat on cross by saying I don t recall Patera making a direct reply to his request for assurances McCullum was admittedly very nervous at the outset of the meeting McCullum also agreed that the meeting ended with some mild joking' about the treadmill test On the other hand given my conclusions about Patera s hostility toward McCullum s union activities and his general credibility and given Patera s critical attitude toward McCullum during this conversation, it would not sur prise me if he had withheld the requested assurances He did testify that he made the seemingly stern admonition to McCullum that I felt his number one responsibility was as a football player and that his activities as a player rep should not detract from his performance ' Al though Patera was not one of the most impressive wit nesses at this hearing I have no particular reason to dis credit him on this issue, given my earlier (and subse quent) findings regarding McCullum s testimony McCullum testified that he had in past years enjoyed a good, even social relationship with Patera but that during the August training camp, Patera was aloof toward him Patera said that his attitude did not change I think it likely that Patera was not as congenial to McCullum as he had been in the past and that his atti tude was probably due to McCullum s performance as a player representative, as shown, Patera conceded that he had been bothered by McCullum's February reference to the callous use of injured players, and as found below I believe that his reaction was considerably stronger than that McCullum further testified to what he thought had been unusually unfair criticism leveled at him during the first few days of training camp by Offensive Coordinator Jerry Rhome, who had been the coaching assistant im mediately in charge of McCullum since 1976 When on the third or fourth day McCullum asked Rhome why he was being so harshly criticized Rhome said that McCul lum was being paranoid and pointed out that he had only been trying to get McCullum to stick to the basics because the offensive line was being reconstruct ed. Rhome recalled a similar conversation, in which McCullum had told him that everything was funny apparently linking that to his union status and Rhome had replied that he was being a little paranoid The next block of testimony is the most potentially damaging direct evidence of motivation in the case McCullum first testified on direct examination to a con versation with Rhome shortly following the foregoing talk Yeah, later on in that week he knew that I was back to being myself and he commented on it so because I felt better after talking to him, that the criticism wasn t just pointed at me in the sense I didn t think, but he knew I was back to myself and I was having more fun on the football field and I was playing better and I was catching more passes At which time he pulled me aside on the field and said to me he says, he said I just want to let you know something,' he says, `being a player rep is risky business At which time I responded I go really and then he just kind of walked away and I kind of walked away myself, rather stunned that he would even say something like that to me On cross McCullum made it clear that another con versation had occurred between the first one and this latter exchange, he said that in the middle conversation Rhome had commented that he was happy that McCullum was himself again, was having some fun, and was back chattering The last colloquy about the risky business' was just a one line comment from him and a one line response from me 17 Rhome denied ever saying anything about risky buss ness, but he did recall telling McCullum a few days after their first talk, that he knew McCullum had a lot of pressure on him and that he should just relax I said I know it's tough being the union rep and having all the responsibilities you have but just-when you get out here on the football field this is your escape I cannot credit McCullum on this issue Although McCullum gave the Board an 11 page affidavit in sup port of his charge that statement makes no mention of the risky business incident McCullum testified that he signed the affidavit on September 8, only the day after he was released, at a time when his life was exceedingly hectic I have no doubt that things were frenetic at the time but it is not easy to believe that McCullum would simply have forgotten the sole direct suggestion that his union status could be risky business, made to him by a managerial official only a month before-a suggestion that had rather stunned him 11 Earlier on direct McCullum had seemed to indicate that the last two conversations were only one note the words at which time in the long quotation above SEATTLE SEAHAWKS The record clearly shows that McCullum was appre hensive about the effect of his union activity on his pose tion with the team That is shown by, among other things, his visit to Patera seeking assurances, ' and Gen eral Manager Thompson s testimony that, in April, McCullum had complained to the press that management was denying him his previous allocation of promotional dates That an intelligent man with his antennae quiver ing so violently in this particular direction would forget to mention the stunning ' risky business' statement in his affidavit is, to say the least, surprising Is McCullum testified that he only recalled the exchange around February or March 1983, when he was preparing for this hearing McCullum had kept notes of his activi ties during training camp and, in reviewing them, he saw an incident that says Jerry Rhome incident in my notes At that point, he says, he called a Mr Reese, ap parently a union employee, to whom he had during 1982, "called in every day to report every incident we had so that it could be recorded to the union He asked Reese to read me back all my notes, which was done He clearly seemed to be replying affirmatively when he was asked whether the union kept notes reflected spe cifically the words being player rep is a risky business' Oh, now I do-because when we, when I started asking for the re-you know, redefinit [sic] reread me back my notes that I'd given him and they do yes they do But when Respondent made a request for the relevant notes, they were not produced McCullum's own notes, which his testimony indicates should at least show the words `Jerry Rhome incident had been thrown away he said, after giving the affidavits, because all I needed was recall from the affidavits 19 But that was not en tirely so, because he in fact retained seven pages of notes, which were produced and entered in evidence These notes reflect activities of August 10, 11 16, and 17, thus beginning rather soon after the conversations with Rhome Why these notes were retained, and not the others was not explained Not did the Union ever produce the notes assertedly given by McCullum to the Union contemporaneously, which had been reread" to McCullum in February or March and which as I construe his testimony purport edly show specifically the words being player rep is a risky business Nor indeed did McCullum explain why he thought it necessary to refresh himself about a simple, 18 At one point McCullum seemed to be saying that he might not have mentioned the incident because he did not think that Rhome himself had any bias against him because of his union position It is hard to be lieve however that McCullum would not at least have perceived such a statement as a useful reflection of team policy by a high level manager It is also not easy to accept that the investigating Board agent had failed to ask McCullum the standard questions whether a supervisor had ever spe cifically warned him about his union activity 19 In addition to the September 8 affidavit McCullum had given an affidavit in August in support of a charge relating to the handshake fines as discussed hereafter That affidavit also makes no reference to the risky business remark although there is no compelling reason it should McCullum later stated that he had not used his notes to make the affida vits 913 two sentence incident that had stunned him at the time Given these considerations, I simply have no choice but to conclude that Rhome did not make the sinister risky business remark, but rather only tried to sympa thize with McCullum about the pressure of being a union agent 20 The most significant showing of Respondents hostility toward the Union may be found in the evidence of cer tarn fines imposed by Respondent in August In the spring of 1982, the Union decided that it would be useful for competing teams to engage in mass solidarity' hand shakes just before the preseason games began, in support of the bargaining to be done in 1982 The week prior to Respondent's first preseason game against St Louis August 13, McCullum and the team council decided to shake hands with the Cardinals just before the game started They also decided, according to player David Brown, to ask Patera `could we go out and do the hand shake A delegation consisting of McCullum Brown, and Kenneth Easley went to see Patera McCullum told Patera that they had decided that they wanted to shake hands so that they could get a chance to know the other players during this contract renewal year Patera immediately opposed the idea because it was against tradition, and he said that they could get to know the other players after the game Easley then said, rather more forthrightly, that the purpose of the handshake was as a show of solidarity for our union Easley testified that at this point, Patera said that he did not need any union activities on his team ' Brown did not substantiate this, although he did recall Patera saying If it wasn t for the Union then you wouldn t even be in here McCul lum gave no similar testimony I suspect that Brown s recollection is the correct one, and that Patera made such a comment in making clear his preference for Eas ley's more open statement of a union related purpose as compared to McCullum s 21 McCullum finally said that the players might go ahead and do the handshake and Patera said according to McCullum and Easley I 11 fine you as much as I can On Wednesday August 11, Patera called McCullum to his table in the cafeteria and showed him a telex to all the clubs from the Management Council Executive Com mittee stating that in the event of players engaging in disturbances they should be fined no less than $100 Patera told McCullum that he would fine the players for engaging in the handshake, and McCullum replied that the Union lawyers believed that such fines would be un lawful McCullum testified that Patera s response was that McCullum should tell Ed Garvey, the executive di 20 The General Counsel pointing out that Rhome admitted to a con versation in which he addressed McCullum s union status argues that Rhome s version is merely a watered down version of the truth But it can equally be that McCullum s is a puffed up account of the incident 21 Patera was asked whether he made any reference to union activi ties He denied having done so 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rector of the Union, to take his lawyers and shove em up his ass "22 That evening, Patera spoke to the team He told them that McCullum had not been honest with him about the reason for the handshake, and he applauded Easley's candor He A ent on to explain his opposition to the handshake gesture as being demeaning and disruptive to football, and he announced that he would impose a fine on any players who participated consisting of one half of their first regular season game checks In the case of McCullum, who earned $160,000, that would amount, presumably, to something under $5000 23 The players nonetheless voted that night to shake hands with the Cardinals In a meeting later that e,.ening between Patera and team captains Largent and Simpson, Patera was told that the players were going to defy him, and he said something to the effect that "he knew who wrote the checks and that we would have a tough time getting the money back and if we did it may be 2 or 3 years down the road " The following evening, Patera again told the players that they would be fined, but said that if they did decide to shake hands, he wanted them to do so as a team, for the sake of unity On Friday, the handshake took place Thereafter, on Monday, the team did not receive their regular preseason checks, and McCullum was told that Patera had ordered that the players were not to be paid That evening, the team council met with Patera, with McCullum threaten ing to sue, Patera said that Thompson was handling the matter Thompson told McCullum the next day that he was waiting for clarification regarding the permissible fine On Wednesday, Thompson told McCullum that the half a regular game check fine would be levied by with holding from the players one half of each of their presea son game checks, with the balance, if any to be taken out of the first regular checks A day or two later, after the Union had filed a charge with the Board, the Management Council ordered all clubs that had imposed flues to rescind them The parties stipulated that no other club had imposed a fine in excess of $100 When the word of the rescission reached the Seahawkc camp, excitement filled the cafeteria Accord ing to McCullum, he `looked over at coach Patera, who was looking at me at the same time After about a 5 second stare amongst us, he slammed his fist down on his tray at his table and pranced out of the room very fast without saying a word "24 Easley, his recollection some 22 Patera denied making such a statement McCullum s affidavit while recounting the incident in quite a detailed fashion does not mention this particular rudeness McCullum explained that at the time he made the affidavit, he did not realize that it was important to know if there was anger or if someone swore about something learning this only later from counsel But his affidavit does contain the angry detail that when the fines were rescinded as later discussed Patera slammed his fist on his tray got up and walked out without saying anything In addition McCullum s notes for August l 1 contain quotations from the conversa tion but omit the alleged remark Given these circumstances I cannot credit McCullum on this point although the crude suggestion is not nec essary to establish the undoubted proposition that Patera was angry 23 The players receive one sixteenth of their yearly salaries after each regular season game I assume that customary withholdings are made 24 McCullum s affidavit states There was some cheering and clapping from the players Patera was present and he slammed his fist on his tray what more restrained, saw Patera bolt up out his seat and leave the cafeteria he was obviously upset over something Although Patera attested to his relative amt ability at the time, I have no doubt that he was intensely unhappy about the players victory over him in this off the field scrimmage At a regular meeting prior to the second preseason game, having been informed by Brown that the team planned to shake hands with the Vikings, Patera told the players that he still did not want them to shake hands McCullum testified, He said the NFL Management Council treats this-said this is a union matter, but I want you to know, I took it as a personal matter to me Respondent attempts on brief to paint Patera's stiff op position to the handshakes as something less than, or dif ferent from, traditional antiunionism In a sense, I can understand the effort I believe that Patera was con cerned with tradition, but I believe, even more, that he was concerned with the perceived affront to his author ity Once the players had decided, perhaps foolishly, to seek his permission to engage in the handshake, and then notified him that despite his refusal, they were going to do it anyway, the special hackles of unchallengeable au thonty that probably grow on professional football coaches must have stood straight up in the air 25 Patera, however, was reacting to collective activity, which is protected by Section 7 of the Act The law is clear that even when a case can be made that an employ er would have been equally harsh with a single employee for engaging in unconcerted activity, as he has been with two employees engaged in the same activity, he may not treat the two situations the same if the activity is con certed and protected NLRB v Office Towel Supply Co, 201 F 2d 838, 840 (2d Cir 1953) In addition, an employ er may be held to account for retaliation resulting from `caprice or anger [which] arises out of or may reason ably be attributed to, resentment against employees for pressing their rights under the Act Gullett Gin Co v NLRB, 179 F 2d 499, 501-502 (5th Cir 1950) Moreover, it seems clear that Patera was not indiffer ent to the collective dimension of his employees con duct, as illustrated by the knee pad" incident of around August 22 Patera noticed at that time that a number of players were not wearing their knee pads, as required Calling them together, he told them that the rule would be enforced As they began to leave, Patera added, And there 11 be no vote on that 26 McCullum played as a starter in the four preseason games in August and on September 3 On the latter date, Respondent acquired by trade from the Baltimore Colts a wide receiver named Roger Carr By that time, a new and promising wide receiver named Byron Walker had also been discovered in the training camp On September 7, the final day for reducing Respondents active roster, got up and walked out without saying anything No reference is made to any stare in which the eyes of the two men were locked 25 Patera was also aware that the Colts and Vikings players had earlier desisted from the handshake when their coaches had asked them to 26 Patera also gave an indication in his testimony of what may be a general belief that union activity is a divisive force on a football team when he referred to a 1974 strike in which we had an awful lot of am mosity between pro and antiunion players SEATTLE SEAHAWKS 915 it released McCullum and retained wide receivers Lar gent, Johns, Carr, and Walker On September 7,27 Respondent placed McCullum on "waivers which meant that any other team was entitled to claim him by taking over his contract Patera called McCullum in and said that he had tried to trade him, but had been unable to do so Patera explained, as McCullum recounted, that because of the acquisition of Roger Carr that I was in a fight for the fourth wide receiver position with rookie Byron Walker, and he felt that Byron Walker's career was on the way up and mine was on the way down, and that he could see no reason to keep me around when he could keep a younger player around " Patera also said , however, that if an injury oc curred and McCullum were still available, he would try to have him rejoin the team One of the other 27 NFL teams, the Minnesota Vi kings, put in a claim for McCullum under the waiver system Although he at first opted to become a free agent, McCullum eventually signed with the Vikings just prior to the second regular season game At the time, in a press release, the esteemed Viking coach Bud Grant stated Sam was the most valuable player on the Seattle team a year or two back Our scouting reports say that he is one of the better wide receivers in the league We never had any trouble with him when he was with our club, and we have no reason to be heve that we would have any problem with him now 28 Michael Lynn vice president and general manager of the Vikings, testified that his team acquired McCullum because all five of its wide receivers had been injured to various degrees within the previous few weeks 29 When first signed, McCullum was put on Minnesota's four player "inactive list " A Leaguewide strike began later in September, when the strike ended on November 17 the rules changed and McCullum became one of the 49 active players He did not start the next five games, but he played in three of them He became a starter in the sixth game after a regular starter suffered an injury McCullum also started in the two postseason games played by Minnesota In a 1983 Prospectus and Season Summary prepared by the Minnesota publicity depart ment for distribution to the fans and media, coach Grant is reported as saying, in the section of the pamphlet deal ing with wide receiver prospects for the coming year Getting Sam McCullum was the best thing we could have done He proved that against Detroit, when we needed a win there, which has never been 27 There is uncertainty in the record as to the dates of specific events McCullum testified that he was told of his release on Tuesday Septem her 6 Tuesday however of which he was fairly certain was September 7 which is the date on McCullum s notice of termination Patera thought that the final cut day was Monday Rhome said it was Tuesday 21 Grant did not testify The parties stipulated that Grant believed the words attributed to him 29 He also said with reference to Grants press release that the only scouting report to which Minnesota subscribes is Mike Giddings serv ce to be discussed hereafter easy, and he came up with a big game when we needed one (seven catches, 79 yards in a 34-31 vic tory) And then against Atlanta, in the playoffs, he caught a big touchdown pass in the fourth quarter to put us back in the lead In today's game, there's a lot a receiver has to know and Sam bungs to us the kind of intelligence and experience that you must have to play the posi tion He also is a good athlete and I don't see any diminishing of his skills in the immediate future There are other matters, occurring around and after early September, that are said to cast some light on Re spondent's motivation Largent and Smith gave testimo ny intended to show that Rhome told them at one point that he had nothing to do with-the decision to terminate McCullum, but then later told Smith that it had been Rhome's decision to cut McCullum It seems that the two players were confused on this point, having con strued Rhome s statements to them that he had nothing to do with the acquisition of Carr to also comprehend having nothing to do with the separate act of the release of McCullum Rhome testified that he did say to them that he was uninvolved in the Carr trade, which he was, but he denied saying that he had nothing to do with the release of McCullum, which he believed himself respon sible for 30 During the hearing, Patera was asked about two state ments he made to the press in explanation of the decision to cut McCullum He acknowledged that he said that `when a veteran slips out of the starting lineup, he should no longer be part of the team ' At the hearing, he described a "general policy" that [i]f a player has start ed for you and is beat out by someone and you have [sic don t have?] an adequate back up or young person you re training, if you have room for the veteran, that's fine He will remain on your team, but for the n-ost part, the reason the man is beat out and you re training someone else, then there s no reason to keep a back up unless you re a championship team and you feel that that back up would help y ou win a championship more than if you re building a team and the young player would be more valuable to you as a trainee It was established that McCullum and guard Robert Newton were the only failed exstarters who were cut in 1982, and that perhaps five former starters were retained But it does not seem fair to hold Patera to a rigid an so On direct Smith said that when he heard on September 3 that Carr had been acquired he told that to Rhome who replied Yeah but 111 tell you one thing I didn t have anything to do with it Subsequently Smith said just prior to the first season game Rhome a good friend of his came up to him to tell him the truth that it was my decision to cut Sam McCullum and he went on to explain his decision to Smith who was close to McCullum Smith evidently thought that the statement that Rhome was involved in the release of McCullum was somehow nec essanly inconsistent with the statement that he was not involved in the trade for Carr On cross Smith apparently recognized this problem and he expanded his original version of the second conversation to have Rhome also saying I in responsible for getting Roger Carr That is quite a different account Rhome testified that he had the second conver sation because the press was inaccurately reporting that he was shocked at the release of McCullum and he thought that Smith a friend of McCullum s could set matters straight 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nounced policy of automatically eliminating all former starters, obviously he did not intend to convey such in flexibility, given that he knew even as he spoke to the press on this subject that he was not cutting most of his exstarters 31 He likely meant, as he indicated at the hear ing simply that it was preferable to jettison a potentially disgruntled former starter if one could afford to (he should no longer be part of the team) The other statement by Patera quoted from a newspa per story was, Sam was a very productive wide receiv er The thing is that the other receivers can do some thing more with the ball after they catch it A lot of players can catch the ball The four we ended up keep ing are capable of doing something with it " McCullum testified that in the film sessions after the preseason games in 1982, he was criticized for the same thing, that I don t run very well after catching the ball McCullum described these criticisms as unjustified somehow, I have difficulty imagining a coach persistently criticizing a player in front of other players, as they all watch the game films, about a point that is not at least sometimes valid Nonetheless, this criticism of McCullum, as I un derstand the record, was never before one of the major deficiencies attributed to him His inability to do some thing with the ball once having caught it is not a pnnci pal theme in this record Patera testified that he had a lot of press confer ences on the subject of McCullum's discharge, which ap parently stirred up controversy, and that he generally made the following statement I told them I felt we had four wide receivers that, in our coaching opinion, were better than Sam, and that Sam had been very productive for us in the time that he was with us, that I appreciated having him on our football team, but that the players that we had now, the four players that we kept at that position, could do more than Sam and that while Sam is very adequate at what he could do, these players can do the same thing as Sam with a little extra Seattle lost both the games played prior to the strike On October 13 during the strike Respondent discharged Patera and Thompson (the latter being told that the owners were not satisfied with the team s progress ) Michael McCormick, the director of football oper ations' became the coach for the rest of the season and then was appointed president and general manager Rhome stayed on until the end of the season and was then discharged At some time after the strike, players Smith, Brown, and Butler met in a hotel room in Denver with John Nordstrom, the majority stockholder of Respondent In the course of conversation, according to Smith and Brown Nordstrom said that when he had first heard of the firing of McCullum he had stated that even if it was because of his playing ability he felt that the timing was bad " I find nothing very meaningful in this, it does 31 Patera explained at the hearing why he needed each of the former starters who were retained on the team not constitute a concession by Nordstrom, who told the players that he knew nothing of the discharge before it happened, that the decision was not based on McCul lum s playing ability 32 Finally, McCullum testified that in February 1983, he attended a football banquet in Seattle at which McCor mick stated, during a speech, that if the situation here had been remedied earlier, that Sam McCullum would still be a member of the Seattle Seahawks McCullum understood the `situation" to refer to the regime of Patera and Thompson McCormick testified that he had acknowledged McCullum s presence at the banquet, had congratulated him on his season with Minnesota, `may have inferred that I would like to have coached Sam, but did not say anything relating to the release of Patera and Thompson, a situation to which he was very sensi tive "33 I have difficulty believing that McCormick, who had become president and general manager of the team in the month before the banquet, would have publicly made the remark attributed to him by McCullum The statement not only suggests that McCullum was unfairly or unwise ly fired, thus giving some support to the Labor Board complaint then outstanding, but it also denigrates Patera and Thompson, the latter of whom had apparently been McCormick s benefactor in obtaining the Seattle position for him No other player present at the banquet testified I am inclined to think that McCullum misunderstood the compliments directed at him by McCormick The foregoing summarizes the evidence of McCul lum s union activity during the pertinent period, Re spondent s reaction to that activity and related matters We now turn to a review of the changing Seahawk wide receiver situation as it unfolded in 1982 C The Evolving Wide Receiver Situation in 1982 At the end of the 1981 season as earlier noted Re spondent to all intents and purposes had three potential ly useful wide receivers on its rolls-Largent, McCul lum, and Johns-and one-Raible-whose career may have appeared to be at its end 34 By September 7, 1982 the day McCullum was released Respondent was carry ing as wide receivers five solid players and prospects- Largent McCullum Johns Roger Carr, and Byron Walker The development of this situation is a complex tale in which events moved along on separate tracks con currently as shown below In relating these events, I shall take the opportunity to discuss their possible mean ing in the broader context of the alleged discrimination 92 A small change of wording such as even though it was because of his playing ability could change the tone of the sentence completely whether the players were that sensitive to such nuances I cannot say Brown cant recall if Nordstrom used the exact words quoted above 33 McCormick when asked if he had ever told any Seahawk players that he wished Sam McCullum was on [the] team replied It could have happened I think Sam is a good receiver It could have happened I can t recall if it actually happened 94 Patera made it clear that he did not think that Raible (who had a collapsed lung in 1981 ) would play in 1982 Rhome however testified that he was not necessarily projecting Raible s removal as of early 1982 and he also apparently had not ruled out the usefulness of McGrath SEATTLE SEAHAWKS 917 1 The 1982 goals Jack Patera and Jerry Rhome both testified to a coaches conference in January 1982 35 prior to McCul lum's visible emergence as an active player representa tive, at which they discussed the team's needs for the 1982 season As far as the offensive requirements were concerned, Patera said, they needed to replace the center, guard, tackle, and a wide receiver " He said that one of the 'specific names discussed at this time as players who needed to be replaced" was McCullum Patera also testified that rookie Paul Johns had shown in 1981 that he had "a great deal of ability and that it was possible that he could be the replacement as a wide receiver," but he still needed to show improvement Patera explained the reason for seeking such a "replace ment ' We said that if we are going to be better, we ve got to have a receiver on the opposite side from Steve Largent that is going to give us more help We didn t feel that Sam McCullum was the type of receiver that was a threat to anybody, that they would continue to cover him one on one, he didn't have much respect in the League The fact that they could take Steve Largent away from us with any type of defense pretty much limited our overall passing game There are things that we ve done in the past to take advantage of defenses that have overshifted, and so forth, played Steve double cov erage, and so forth but we were running out of things to do So we said, we have to come up with a different type of threat or a better threat Although he did not initially make any reference to a decline in McCullum s 1981 performance as playing a role in this decision, Patera responded, when specifically asked about that aspect, that part of this conclusion was based on '[McCullum s] performance in 1981, which was not as good as it was in 1980 " However, he went on the basic part of it was that people had seen what we could do with the two wide receivers that we had We had to come up with better talent in order to make ourselves more effective That specific talent, he ample feed, was a person that can open up the defense Patera went on to say That was just one of the things we said And it wasn t the first year that we said that But it was 1981 [sic] we said, this a must if we re going to get better ' He also testified that the acquisition of such a deep threat' wide receiver was his number one prior lty 36 31 All dates in this section of the decision refer to 1982 unless other wise indicated 36 On brief Respondent helpfully collects the terms which are associ ated or synonymous with deep threat (a description wholly unrelated to the infamous and anonymous White House informant) A wide receiv er who can go deep catch the bomb score the home run get on top is one who can usually run quickly to catch a long pass outracing the other side s defenders to do so if necessary and not being disturbed by the presence of competing players as the football hurtles down from the air As I understand it this ability primarily affects play because it stretches the defense i e causes the other team s defense to play deeper to protect against the bomb thus opening up more opportunities for the successful completion of shorter passes The Charging Party s beef asks a question that I have trouble answering on this record [W]hy would the team feel that one of its greatest needs was to open up the offense so that Steve Largent would be open to catch passes,' because Largent 'had just had his best year ever as a pro in 1981, setting a club single season record with 75 catches It is a good rhetorical question The record, which does not contain statistics for years before 1978, shows that Largent had actually improved his statistical performance in 1981 over the preceding 3 years In 1978, he caught 71 passes for an average of 16 5 yards In 1979, he caught 66 passes for an average of 18 7 yards In 1980, he again caught 66 passes for an av erage of 16 1 yards But in 1981 he caught 75 passes for an average 16 3 yardage The statistics further show that 75 passes is a topnotch performance for a wide receiver in the NFL 37 In 1978, with 71 catches, Largent led the League among wide re ceivers in terms of completions In 1979, with 66 he was the fifth wide receiver in the League (the others having 80, 74, 72, and 70) In 1980, with 66, he was the seventh (against 82, 82, 71, 71, 69, and 68) But it was only after the 1981 season, when Largent was the second leading wide receiver in the NFL in terms of completions (the leader had 85), that Patera had concluded that Largent could be taken away from us with any type of de fence 38 And this conclusion was reached, it should be added, after a season in which the Seahawks passing game was deemphasized following the seventh game and Respond ent began to run the ball more often 39 Presumably, if the normal amount of passes had been thrown Largent would have caught even more than his grand total of 75 It could be argued, I suppose, that these statistics may not disclose the whole story It is at least theoretically possible, for example that the ball was thrown to Lar gent more in 1981 than before and that his relative per centage of completions was worse even though the abso lute figures improved No such evidence however ap pears in the record, and since fewer passes were thrown in 1981, the possibility seems most unlikely But any lingering doubt on the subject is to my mind plainly dispelled by the subsequent testimony of Jerry Rhome When he was asked whether McCullum s long standing inability to catch the deep ball seemed to you suddenly more important" at the beginning of the 1982 season, he replied Well, it wasn t necessarily more important It was dust like it had always been through the years We had always been trying to find somebody that could do it, and we went through a lot of receivers We went through Dick Ferguson, who was supposed to be a great deep threat, and he didn't turn out to be 37 The statistics in evidence relate to pass receivers in toto including wide receivers running backs and tight ends but Thompson has written on the exhibits the positions played by the players named 38 Largent s total yardage in 1981 was higher than in two of the previ out three seasons and only slightly less than the other 1978 - 1168 yards 1979-1237 yards 1980-1064 yards 1981-1224 yards 99 Rhome testified that this was done because the quarterback was not being adequately protected 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Steve Raible was supposed-you know you are constantly trying to find a guy that can do that 82 wasn t any more, you know, the interest on that wasn t any more in 82 than it was in 81, 80 or 79 Thus, to offensive coordinator Rhome, who was cer tainly in a position to know about such things the deep threat need had not, as Patera said, become a 'must' in 1982 because Respondent was running out of things to do' and Largent was being taken away ' On the con trary, the need was not `more important', it was just like it had always been through the years", and `the in terest on that wasn't any more in 82 than in the preced ing years Clearly, then, it was not true that, as Patera testified about the coaches conference attended by Rhome, that, unlike prior years, [W]e said, this is a must, if we're going to get better Similarly, it was not true that the other teams were "taking Largent away' and that Respondent was running out of things to do 2 The Roger Carr initiative It does not appear that, after the January meeting, Patera acted as if there was any urgency about acquiring a deep threat' wide receiver As far as the record shows, nothing more was done toward this end until March, and that effort was rather fortuitous In mid March, Michael McCormick joined Seattle in the newly created post of director of football oper ations " McCormick's previous position had been as head football coach for the Baltimore Colts in 1980 and 1981 After he joined Seattle, McCormick was asked by Patera and General Manager Thompson if Baltimore had any players who might be available and helpful to Seattle in four positions specified by Patera, including wide receiv er He recommended, in order wide receiver Roger Carr, an offensive center (Donaldson) an offensive tackle (Griffin), and an offensive guard (Pratt) It is useful at this point to know something about Roger Carr Carr is about McCullum s age and had en tered pro football in the same year, 1974 The evidence indicates that Carr possessed more natural ability than McCullum He was a first round selection in the college draft In 1976, he was chosen to play in the Pro Bowl 40 The table in the exhibit is reproduced below game and was named to the All Pro second team In Carr's first five seasons (1974-1978) he had only played one full 16 game season and had never, except perhaps in 1980, caught an impressive number of passes, at least compared to other such statistics in evidence However, in those first five seasons, his average yardage per catch was 213 which, as I read the other numbers in the record (that is to say, cautiously) seems to suggest that Carr was something of a `bomb threat 40 This is also an appropriate time to meet Mike Gid dings Giddings is a former coach who operates the only completely independent professional football scouting service, called Pro Scout, Incorporated 41 It is Giddings sole occupation to review 112 football game films a year between August and April, spending 12-18 hours each on 4 films of the 28 clubs, and writing up evaluations of nearly every player (perhaps more than 1500, I suppose) he sees Eight NFL teams, in an arrangement that makes his services exclusive, pay him undisclosed sums of money for his opinions of the players Respondent is not one of Giddings clients and, prior to this hearing, pre sumably had no knowledge of the opinions he had pub lashed regarding the players here involved Because Gid dings appraises so many players each year, he can hardly be considered the definitive authority on any one or two Nonetheless, his professional judgments seem worth some weight Giddings ratings are color coded, abbreviated, and use some symbols, particularly an arrow pointing upward, which means ascending, improved, uptrend, and one pointing down, which means the opposite 42 He employs a six color rating range with plus and minus gradations (blue, red, orange, gray, black, and yellow) Red is de fined as Solid starting job Fine football player, blue, ' as one can imagine, is even better Orange players are also looked on with approval, while not red, they occa sionally do red things and they are the key group for developing players A player usually possesses charac teristics of different hues at the same time At the end of the 1980 season, Giddings had rated Roger Carr as an overall blue minus Carr was blue in key big plays very few errors,' ' feet 43 change of direction hands escaping tight cover, and finding Year Games No of Catches Yds Avg Long Gain Touchdowns 1974 12 21 405 193 57 0 1975 14 23 517 225 90 2 1976 14 43 1112 259 79 11 1977 7 11 119 191 45 1 1978 16 30 629 210 78 6 1979 9 27 400 148 37 1 1980 16 61 924 151 43 5 1981 15 38 584 154 43 3 41 Giddings was an enthusiastic relaxed and spontaneous witness Al 42 Some of Giddings evaluations hereafter shown are translated for though he has no affiliation with Respondent his natural alliance is with the benefit of the reader the clubs not the players a fact which I have kept in mind in consider 48 Feet means speed It does not mean the same as quick The ing the details of his testimony His written products were I feel sure as latter term often used with respect to McCullum in this proceeding objective as possible means the capacity to make abrupt moves SEATTLE SEAHAWKS 919 zone holes Carr was also graded red' as to worker, going inside, and bomb He was rated less than red on strength, aggressiveness, and blocking In his com ments, Giddings noted that Carr can do it all (except block) when well,' and pushes cornerback deep 144 After the 1981 season, Giddings was somewhat less en thused about Carr Now Carr was rated as an overall red, but Giddings still noted Carr s blue feet,' finding zone holes hands," and that he had been blue in most skill areas in 1980 For 1981, he was grading Carr red in `most skill areas' other than, presumably, the blue features already noted Carr received an orange rating for too many errors and green for blocking, strength Giddings written comment was [Descending] or sulk ing9 Can still escape bump and run 45 The question about `descending or sulking, Giddings testified, was raised by the fact that Carr had not played as well in 1981 as in the past, and Giddings was not sure whether he was simply unhappy with the Colts or was losing some ability Finally, Giddings noted that Carr had injured his knee and ankle in 1981, and he assigned him an "injury grade of D, which means Very risky and You better make a darn close check" if one intends to acquire Carr These injury grades are based on public reports about a player s condition As to McCullum at the end of the 1981 season, Gid dings rated him as a red descending 46 He did not credit McCullum with any blue qualities Red qualities were shown as physical qualifications and hands Unlike 1980, Giddings showed McCullum in 1981 as having certain orange qualities these were key big plays' and bump and run by a top cornerback ' Gid dings comments were "[Descended] tad 47 Still a smooth possession wide receiver 48 Tad slow at the break on the outcut Red the last 3 years Has improved himself ' By this latter remark, Giddings explained that he thought McCullum had improved himself technical ly over the preceding 3 years, but he graded McCullum as a red descending because he appeared to be less productive overall and perhaps losing a half step Much other testimony as to Carr s ability was given, perhaps the most meaningful I thought from General Counsels witnesses Defensive cornerback Keith Simp son said that Carr had been a ` super player with Balti more Strong safety Kenneth Easley called Carr an out standing' pass receiver Steve Raible now a Seattle media personality testified that one of Carr s qualities was his ability to go deep and catch the long pass," and he said that Carr while not a better receiver was `faster than McCullum Running back Sherman Smith 44 Also at the end of 1980 Giddings showed McCullurn as a red as tending He found in McCulium only one blue characteristic however ( change of direction ) and thought him red on all other features corn mented on (no mention was made of bomb or hands ) Giddings re marks Has developed into a smooth solid WR/smart and precise and can change peed well 45 Considered by Giddings at the hearing to be a very important factor for a wide receiver The term means the ability to keep going despite being pursued by an aggressive defender 48 His production may drop if you acquire him as Giddings ex plamed at the hearing 47 I e descended a bit 48 Meaning the type that can make the catch to get the first down but can t quite doesn t quite have the speed to get that deep ball thought that Carr was a little more fleet of foot than McCullum, although he believed that McCullum was the better receiver This sort of testimony leads to the belief that Carr was a very good player when well, and that in looking for a wide receiver it surely would not be sense less to focus on Carr Patera testified that after McCormick s recommenda tions, he talked to the new Baltimore coach, Frank Kush, about trading, but Kush said he was not familiar enough with the team to make such decisions Patera then assigned McCormick to keep abreast of the matter 49 The latter spoke to Ernie Accorsi, the new Colts general manager, but he wanted to defer discus sions until after the 1982 college draft 3 The 1982 draft As of the end of April 1982, no new wide receiver had been acquired by Seattle or was even in faint view over the horizon The college draft, held on April 27-28, of fered an opportunity to pick up a top college wide re ceiver to satisfy Patera s asserted number one priority Rhome and Patera testified about two college wide re ceivers (Tuttle and Hancock) who were considered `prospects (Rhome) and outstanding (Patera) and a third (McDaniel) who was almost of that quality The 1982 draft selections show that although Seattle picked 6th in the first round, it chose a defensive end, thereafter, Hancock was picked 11th and Tuttle 19th in the remain der of the 1st round, and two other wide receivers were also chosen In the 2d round, Respondent, going 6th, selected a linebacker, McDaniel was chosen as the 23d choice by Denver, and one other wide receiver was picked 25th by Miami Seattle, picking 20th after five wide receivers had been claimed in the 3d round, chose a tight end Seattle had traded away its selections in the fourth and fifth rounds, in which a total of three wide receivers were claimed, in the sixth round it selected a tackle, in the seventh a linebacker, and it finally picked a wide receiv er in the eighth round (Chestei Cooper) In rounds 9 and 10 Seattle picked two more linebackers in the 11th a de fensive end and in the final round, a center Patera testified at the hearing to Respondents draft philosophy, his purpose for doing so was apparently to explain the Seahawks failure to obtain a good wide re ceiver in the draft Our particular philosophy, from the day we began, was to draft the best athlete available, and I know that phrase has been twisted and turned a little bit-you can say we weren't going to draft the best javelin thrower or whatever, but the best foot ball player at that position the way the ratings came up, regardless of the position that we needed If we needed a running back-if we considered the fact that we need a running back more than we do a defensive lineman and the defensive lineman is clearly superior in his position in college, we would 49 Although Thompson was nominally in charge of trading for players it is clear that Patera made the decisions on this subject 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD take the defensive lineman And that's what is meant by drafting the best athlete available He described a system of listing the 300 best college athletes on a board, removing their names as they were drafted, and selecting the top name when Seattle s turn came again, regardless of the position he played Subsequently, Patera stated on cross examination that there was enough flexibility in the philosophy that, toward the bottom of his list of best athletes, he might choose for position rather than for quality if the quality of the players was close But Thompson announced a stricter approach In our case all of our drafting was based on a best athlete available And then if we have a need we would attempt to fill that need through trades rather than- Similarly, McCormick stated, Seattle and a few other teams have always drafted on a pure best athlete, by grade, best athlete available At first exposure, I was skeptical about this approach, but I have come to regard it as not an unreasonable one Patera argues that a team can ultimately do more with better college players for which it has no immediate need than with lesser players that it can now use, that is arguably sensible at least up to a point There is also some equivocal internal evidence that Patera did adhere to this professed principle in 1982 Se attle picked linebackers in 4 of the 10 rounds in which it was entitled to choose in 1982, even though Patera testi feed that linebacker was already one of the stronger po sitions on [his] team On the other hand at another point, Patera testified that as of 1982 we could use a linebacker and McCormick spoke of the need for line backers Two of the four linebacker draftees remained on the team when the season opened I am disturbed however by certain testimony by Rhome that reads as if the club in fact considered draft mg for position to be a permissible practice At the hear ing, in describing the early January coaches meeting on the subject of improving the team in 1982, Rhome twice indicated that they had spoken about drafting for need ( [W]e talked about each player as to how you know what their deficiencies are, whether we can replace them whether we need a draft at that position , Who was potentially the best guy? Who would we count on the next year? Do we have to trade for somebody or are we going to draft at that position? ) and he also testified I was hoping that we could plan on somebody in the draft, but we didn t It is arguable, I suppose that the bottom of the draft flexibility referred to by Patera (but not by Thompson and McCormick) would theoretically make it possible for the coaches to discuss drafting at that position in one of the late rounds, but it is hard to imagine with the un certainties of the draft how that would be worked out It does not seem sensible to discuss in January whether to trade to acquire a player or, in the alternative to hope to find someone useful at that position somewhere in the bowels of the draft and only if the position player is close in quality to the next name on Patera's best ath lete list I do not believe that football coaches speaking of whether they need a draft at that position, have any such wildly unpredictable scenario in mind It could however be argued that if Seattle did not adhere strictly to a draft for excellence policy and it did want to remove McCullum for antiunion reasons it would have drafted a good wide receiver or two The answer might simply be that it had uses for its top draft choices which seemed more important at the time than getting rid of McCullum 4 The Roger Carr initiative (resumed) After the draft was completed, McCormick assertedly received a call from Baltimore s Accorsi about the pro posed trades It had been publicized that Roger Carr had not attended Baltimore s mini camp' (apparently a pre training season activity), and Accorsi told McCormick that Robert Pratt, a Baltimore guard whom McCormick had earlier indicated a desire to acquire, did not want to stay in Baltimore McCormick tried to put together a package deal of Carr and Pratt (offering Sam and a draft choice, or a combination of players ), but Accorsi only wanted to talk about Pratt at the time In point of fact, a trade was worked out for Pratt by July and he came to Seattle s camp at the end of that month Discussions apparently continued between McCormick and Accorsi about Carr during the late summer McCor mick testified that it was not until into July that Balti more even became interested in trading Carr Carr missed the second minicamp and became very vocal with the press about his dissatisfaction, and Baltimore suspended him Accorsi was, nonetheless, asking for Carr a first round draft choice in 1983, a pretty stiff price " Seattle would not pay that dearly however, McCor mick having obtained permission from Baltimore kept in personal touch with Carr at his Louisiana home and, as well apparently maintained contact with Accorsi McCormick testified that it was decided around the second week of August that the intermittent discussions about Carr would better be carried on solely by General Managers Accorsi and Thompson (who had a few times earlier, talked to Accorsi on the subject) It appears that the best offer Seattle had made for Carr to that point was a third round 1984 draft choice or a variant thereof About August 20, just after the solidarity handshake inci dent Thompson got a call from Accorsi to the effect that he wanted Seattle s best offer by August 23, saying that the Colts still wanted a high choice - they still thought they could get a first for Roger Can -in 1983 Seattle let the deadline pass without sweetening its offer The scenario was purportedly repeated, with more ur gency the following week On August 27, Accorsi called saying that his team still wanted a high 1983 choice and that we re informing all clubs today that we re going to trade Roger and it will be done after we receive all offers by Monday the 30th ' Again Seattle did not respond by increasing its offer On September 1, Accorsi called He told Thompson that no fair offer had been made for Carr negotiations were resumed Respondent the next day lowered its offer, Thompson telling Accorsi that Roger Carr, we didn't feel was worth as much to us at this point in time," since the final cut was near and acquiring a new player would `leave us with a difficult choice to make SEATTLE SEAHAWKS on who to release ' Seattle's new offer was a fourth round choice in 1984 The deal was consummated for that pnce on September 3 with however, certain modi fications of the pnor trade for Pratt and other sweeten ers Thus the choice given for Carr would become a third round 1984 choice if Carr participates in 50% of Seattle s offensive plays dunng the 1982 regular season or is credited with 50 or more pass receptions during the 1982 regular season The Pratt trade, which had given Baltimore a sixth round 1984 choice, improving to a fifth if certain qualifications were met, also was up graded to a fifth round choice in 1984 with a possibility, in addition, of a fifth round choice in 1985 The September 3 Carr trade was not the only event occurring in the small universe of Seattle wide receivers Things had been happening at the training camp, to which we now turn 5 The 1982 training camp the emergence of Johns and Walker Training camp began around July 25 for the rookies and July 30 for the veterans In attendance were 15 or 18 nondrafted free agent wide receivers Among these was Byron Walker Jerry Rhome testified that Johns and Walker had a very satisfying training camp There is some impressive evidence that this estimate had substance, so that Rhome s testimony is not necessarily critical on this point However, the question whether Rhome was telling the truth or was manufacturing evidence is pertinent to the issue of Respondents motivation and needs to be dealt with here Rhome authenticated five weekly charts maintained by him during July 30-September 3, containing his evalua tions of the wide receivers He also identified a chart maintained during the 1982 camp that compared the sta tistics of the wide receivers in 'skelly and 'thud' drills and, as well, a list of Grade A wide receivers in the NFL purportedly developed by him after the 1979 season The latter item is the most remote, its purpose in being offered only to show that as long as 2 years prior to 1982 Rhome had considered Roger Carr to be one of the best receivers in the League But since the General Counsel appears to be questioning the partial authenticity of all of Rhome s documents the Grade A list is worth examining The list (which Rhome apparently made up for his own amusement) names seven wide receivers, their teams their 1978 and 1979 statistics their rankings by Rhome, their strength and their weakness It is obvi ous that the last two names on the list, Carr of Baltimore and Swann of Pittsburgh were added at a time different than the first five-the pen is different, no statistics are shown for the last two names (unlike the first five), and for some reason, instead of being ranked numbers six and seven Carr and Swann are both shown as number five, the same number given to Moore of Miami above them Rhome does not deny having added the last two names later, saying that he did not remember much about this early 1980 document, but that he may have been adding names as he watched the films of the 1979 season 921 Rhome testified that the 1978 and 1979 statistics avail able to him in early 1980 regarding the first five players might not have been available to him when he added Carr and Swann to the list That seems no more improb able an explanation than supposing that, in 1982 or 1983, he went to the trouble and danger of attempting to falsi fy the document and yet did not bother to make it unsu spicious looking by using statistics, which likely were easily available at the later time There can be no doubt that the document looks pecu liar, but it is so patently peculiar that one hesitates to think that an intelligent man like Rhome could have done such a bad job of falsifying it I could be wrong, of course, but I find it difficult to imagine Rhome engaging (especially so unconvincingly) in the coldblooded fabri cation of documentary evidence, although I have doubts about some of his testimony Of the remaining six pages of documents, there are three items that can be classified as discrepancies or sus picious entries, and they all pertain to McCullum In my view, they are all arguably explicable The first occurs on the weekly evaluation chart for July 30 (a Friday) to August 5 (a Thursday) 50 In the Comments" section on McCullum, the words Having trouble with long pattern have been squeezed into the box with the other comments and slightly over lap into the next box below This was uncharacteristic of Rhome, throughout the evaluations, his comments gener ally fit neatly into the boxes It may have been added to falsify the document, but it may simply have occurred to Rhome as an afterthought I note, furthermore that this entry already contained a mild criticism of McCullum ( Dropped little more than usual ), and that the same thought that is contained in the added criticism is neatly inserted in the comments for the following week ( Having problem catching long ball") The next unusual entry occurs on the August 20-27 sheet Here added at the bottom of the comments on McCullum, and crossing into the lined space beneath are the words Adjusts very poorly It is obvious howev er that this was not written at some later time, because Rhome s entry in the next space below begins under the foregoing words and at a substantial distance below the punted line a distance that is quite foreign to Rhome s otherwise consistent pattern of starting his entries near the top of each box As to this entry I have no doubt that the quoted words were not added much later Finally there is the summary of the skelly and thud practice drill statistics Only 1 figure on the page which contains 40 numbers pertaining to 8 players is un mistakably changed, and that is the number of dropped balls by McCullum, changed from 5 to "6' It is such a noticeable modification, and, as Rhome said, of such little moment, that I doubt that anyone thought to affect the result of this proceeding by falsifying the document ao The dates on this and the remaining charts have been altered with out attempt at covertness This one was originally dated August 2 (a Monday) to August 8 (a Sunday) No explanation for these changes was sought at the hearing Rhome testified that he prepared these charts on all his players on like every Saturday for the week before 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rhome testified that he probably made and then real ized, an error in addition 51 The weekly evaluations a form devised by Patera that every assistant coach filled out each week, provided for an entry as to the player s squad rating," i e top or bottom" half of his group (e g wide receivers), an entry as to the players potential for championship team, whether all pro, starter, ' "reserve, or ` can't play' (Rhome's testimony indicated that he ignored the concept of evaluating the player's potential to play on a championship team and instead more pragmatically re lated the choices to the potential for the Seattle football team) entries for mental work, practice habits, and physical condition , and Comments Strengths [and] Weaknesses' 52 For the week of July 30-August 5, McCullum is shown in the top half of the wide receiver squad as a starter, with the comments `Working hard Dropped little more than usual 53 Seems quiet Normally a chat terer Having trouble with long pattern ' Johns is also listed in the top half and as a potential starter,' with the comments Very quick, has improved and doing ex cellent Speed improved " As for Walker, Rhome had him circled both "top and bottom' (he explained Sometimes I just say they re halfway in between ), and a reserve," and he commented Very smart Not real smooth Catches ball well, mostly with body (can run) For August 6" (a Friday) to 12 (Thursday) 54 McCullum was still shown as a starter' Very quick and smart Does excellent job inside on blue55 and is good short receiver Having problem catching long ball " Johns also was listed as a potential starter, with the comments Very quick and the fastest receiver Works hard and is competing for starting position at X' 56 Walker was still shown as a `reserve, but was now moved to the top half of the squad, Rhome noted, Best of the rookies Has speed and very smart Has improved daily Good size and is tough This was 61 The drops attributed to Johns and Walker are five and four The more useful information contained in this exhibit is that of 51 passes thrown to McCullum in these drills 27 were completed with 2 bombs of 62 thrown to Johns 38 were completed with 7 bombs and of 75 thrown to Walker 45 were completed with 9 bombs Rhome testified that he looked at this sort of data only to see if anything was standing out and what stood out here was that Walker and Johns caught the long passes As noted at the time he testified Rhome had been discharged by Re spondent which was also true of Patera and Thompson The logical ar gument is that the three would have had no particular reason to defend the Seattle team On the other hand Rhome remains a member of the football establishment being quarterback coach for the Washington Red skins That continued identification is not as clear in the cases of Patera, now employed by Brown Welding Supply and Thompson who is en gaged in starting his own business Their reputations however are impli cated 52 It is my opinion that these documents are genume and that they probably have not been tampered with The extent to which the entries may have been influenced by external events-the handshake affair-is impossible to ascertain but I doubt that any conscious misrepresentation occurred during this period 63 This accords with McCullum s testimony that he dropped approxi mately 6 passes in the very first week of practice due he said to his nervousness about his meeting with Patera on July 30 54 Originally marked 8/9/82 (Monday) to 8/15/82 (Sunday) 66 Blue is the inside position in a three wide receiver formation 56 X was McCullum s split end position the week it should be noted, in which the handshake possibility arose and the fines were threatened The next period August 13-19,57 covered not only training camp, but also the first preseason game against St Louis on August 13 at which the handshake had oc curred The only descriptions of any length of the four preseason games were given by McCullum 58 He said that in the first game, he himself caught two passes, Johns caught two passes (one of over 35 yards for a touchdown), and Walker made a very good catch, and an excellent run with the ball Rhome s notes for August 13-19 continue to show McCullum as a starter, and they say, Doing well on short routes Catching ball better than week before Running better deep routes Lacks burst deep Rhome was not asked to explain the latter criticism, presumably it is yet another variation of bomb Johns, still designated a starter was called Very quick and explosiN a Better off playing X only, gets confused doing too many things Excellent player Rhome explained at the hearing that Johns became con fused in the blue,' or third receiver, position As for Walker, Rhome had for the first time evaluated him as between a reserve and a starter by circling both, and he wrote, Rapidly improving Very smart Catches well Outstanding prospect for a free agent The evaluation for the period August 20-2759 presum ably included the Minnesota game on August 20 McCul lum testified that he caught four passes in that game and that Johns dropped a lot of passes, perhaps four, and also incurred an offsides penalty Walker made two catches Rhome however continued to show Johns for that week as a potential starter,' saying Much speed Much improved over 81 Very quick And Rhome also moved Walker up to a potential starter, no longer in the reserve starter' limbo with the comments, Can run Very smart Drops few passes Also for the first time, Rhome circled both reserve and starter for McCullum, commenting Hustles Very smart Drop ping to [sic] many deep balls Adjusts very poorly Rhome explained the latter as meaning that McCullumi was having trouble catching long balls- A couple of them bounced off his head even you know He further said that his putting McCullum into the starter reserve category had a lot to do with the competition because not everyone could be a starter 67 Originally marked as August 13-20 66 On September 6 the Seattle team released the following pass receiv ing statistics inter alia for the four games Passes Touch Caught Yda Avg downs McCullum 7 89 12 7 1 Walker 6 154 257 0 Largent 5 66 13 2 0 Johns 4 89 223 2 McCullum testified that he had recently watched the films of the four games and that he himself had caught one of the passes credited to Walker thus giving him a total of eight catches Respondent offered no rebuttal McCullum did not identify the yardage involved 59 The first date was originally a 2 and some other unascertainable number SEATTLE SEAHAWKS The third preseason game was played on August 27 and is also presumably covered by the foregoing evalua tion McCullum said that Johns caught perhaps one pass and dropped two, maybe three, Walker caught at least two, and he himself caught a 23 yard pass (requiring an adjustment) for a touchdown The final preseason game was on September 3 Al though he started McCullum did not play much in that game 60 He testified that Johns made a long catch for a touchdown and had at least one dropped ball, Walker may have had one short catch On or about September 3, Rhome made out the last evaluation sheet, for 8-27-82 to `9-3-82 He again had McCullum listed as some where between starter and reserve," saying, `Work ing hard Runs good short routes Still having deep prob lems " Johns, still shown as starter,' Continues to im prove Catching deep ball Ready to start Finally, Walker had been downgraded from the previous week, with both "starter and reserve circled, Rhome noted, `Improving daily Can run Doing well at X and Blue Rhome s testimony about this period supported his weekly evaluations I thought his basic enthusiasm about Johns and Walker was genuine He testified that he told Patera at the end of the preseason, but before the acquisi tion of Carr, that he thought Johns should be a starter, a possibility he had expressed as early as January As for Walker, Rhome said, he was a sensation in training camp I mean he just ran by people every day He just- he was terrific ' Walker was `great in the first presea son game and we got real excited about him", this was the game in which McCullum acknowledged Walker made a very good catch and an excellent run with the ball ' Other testimony, including that given by some of McCullum s former teammates, makes it appear that Johns and Walker were bright prospects Running back Sherman Smith testified that he believed that McCullum should not have been cut because his experience was val uable, but Smith also said on cross that Johns probably had more physical ability than any wide receiver that we've had in Seattle' and has the physical potential to be better than McCullum Similarly cornerback Keith Simpson who ranked McCullum with a rating of 8 on a 10 point scale, testified that although he would only give Johns a 5 rating at the moment a good score, he thought that Johns has the potential to become `more than an 8 41 David Brown, the current player repre sentative, testified that Johns was looking good in the preseason you know he made some good catches Kenneth Easley testified that both Johns and Walker can 60 It was on this day that Respondent obtained Carr and Rhome tests feed that before the game Patera told him there was no need to see that much of McCollum 81 Simpson was almost as kind to Walker Simpson said that Walker has the potential for reaching a 7 which seems promising on a scale in which five is good and at another point he agreed that both Johns and Walker had great potential he also testified that when Walker came in for Largent in the 1982 season he made a fantastic catch in the end zone for a touchdown This presumably was the catch referred to by Rhome as one of the greatest catches I ve ever seen in my life Center Art Kuehn would rank Walker only as a 4 at the same time he estified that the only reason Walker made the team was because he had the potential to be it very good wide receiver 923 be outstanding receivers' when they acquire expert ence This sort of testimony from McCullum s own friends and former teammates makes it rather hard to conclude that the retention of Johns and Walker would have been an irrational act And that body of testimony receives further support from Pro Scout s Giddings In the book" he produced at the end of the 1981 season, Giddings classified Johns as an orange ascend ing,' with blue feet" and `bomb " Johns was labeled `red" for the quality of escaping tight cover and orange for being unsure and not precise yet Gid dings commented in the 1981 report that Johns was the lanky speed type and although he did not see Johns make a catch, the latter had used his hands fine as a punt return specialist He presumably evaluated Johns as orange ascending because, as he later said with respect to Walker, It is very hard for me to rate rookies red ' However, in a separate box Giddings rated Johns on his punt return specialty as a "red ascending, with blue feet and worker In 1981, rookie Johns had been the number two punt returner in the AFC Giddings coin ment here was that Johns was a real free agent find In summarizing the Seattle wide receiver situation Gid dings had noted Appear to be 1 WR [wide receiver] away from having excellent striking power (that is, if stay well) If Johns can be the bomb WR this is a fine crew NEED WR (bomb) As for Walker, Giddings had observed him in the 1982 St Louis preseason game in which, as McCullum testi fled, Walker made a very good catch and an excel lent run ' Giddings testified that he thought Walker an eye catcher he jumps out at you ' In his written wrapup of the strike shortened 1982 season,62 having watched Seattle in three regular season games, Giddings rated Walker as an "orange plus ascending, with a blue characteristic of key big plays," red on speed and most skill areas, and orange on strength and quicks Gid dings' written comments Fine rookie as possession wide receiver-top finds zone holes and can bomb Long legged (lanky)-Top one if quicks improve 63 The only testimony that might be said to detract from the foregoing picture of Johns and Walker was given by Allen Webb, a witness for Respondent In 1982, Webb had been the director of pro scouting for the Cleveland 62 The NFL teams played two regular games until they went on stake in September After the strike ended seven more games were played to complete the season 63I stated at the hearing that what happened during the 1982 season did not seem to have substantial value On reflection that seems to be underestimating such information particularly as to younger players It seems reasonable to argue that talent that is demonstrably displayed at a later time was perhaps subject to detection by professional eyes at an ear her time Charging Party states on brief We agree that Byron Walker had potential and that he surprised a lot of people with his skills He performed admirably in the 1982 season The point is that perhaps not everyone was surprised In Giddings other post 1982 evaluations of the Seattle receivers he again rated Carr (now an ove all red) as can still do it all receiving Johns (now a red ascending) as Fine young wide receiver who had im proved as predicted and in summary Two blues [i e Largent and Carr] and the other two are ascending young red types equals great shape Actually however in 1982 Giddings was rating neither Largent nor Carr as overall blues 924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Browns, and he attended all four of Seattle's preseason games to scout Seattle, Cleveland s first opponent The purpose of Webb s appearance at the heanng was to support Respondents claim that McCullum did not present a stellar performance in those games Using a color coding system like Giddings, in which blue is su penor, red is a solid starter, and green is a guy who is going to be in a backup role, he is not going to be a starter (that is, he would not be a starter for Cleveland, Webb later explained), Webb rated McCullum on Sep tember 12 as only a green The Browns computer print out shows that Webb, once a wide receiver himself, had listed McCullum s strong points as Quick into cuts route execution and jumping ability and his weak points as "average speed catch inside intimidation 64 Webb was asked on cross about Johns and Walker, whose computer reports he had not brought with him to the hearing He thought, although he was not sure, that he had probably given Johns a green evaluation "be cause of his experience he said, however that he thought that Johns had a great future,' for one thing because he can do the punt return As for Walker, however, he wasn t as impressive to me in exhibition, as Johns was He didn t stand out, you know, surface In other words, Webb watched Walker play four games without having an impression made on him, even though McCullum himself says that in the first of the games, Walker made a very good catch and an excel lent run Considering the other evidence in their favor, however, it is difficult to believe that those Seattle coaches who scrutinized Johns and Walker day in and day out during August would not have perceived the abilities that the two men evidently possess 65 My judgment is that, as of early September, coaches like Patera and Rhome could reasonably have thought of both Johns and Walker as appealing young prospects who deserved to be in serious contention for spots on the active roster even over a skilled veteran like McCullum The evidence indicates that both players showed consid erable promise The record confirms that a squad of wide receivers is, ideally, balanced in age, so that the veterans may prepare juniors for the future In a long discussion of the subject, Keith Simpson complained at the hearing about having seen his team s veteran ball players go elsewhere after 1979 because of Patera s predilection for making headway for the young players coming up On such testimony, and such a record as this, it would normally be hard to fault Patera's decision to retain newcomers such as Johns and Walker men much younger than McCullum who brought promise of future success to the team over the coming years As 64 On December 13 1981 Webb had watched McCullum in a game and had graded lum a red minus He testified that McCullum had shown himself to be less productive in the 1982 preseason than he had been in that December 1981 game 65 Steve Raible although of the opinion that neither Johns nor Walker could presently be considered starting wide receivers in the National Football League testified that by the end of 1982 the two had both achieved a level that could be considered one of promise for the future Walker certainly made some spectacular catches during the course of the season and had a very good year Johns once relieved of the pressure of replacing McCullum was performing much better and had learned to handle the pressure of a starting receiver Giddings put it a team does not let an outstanding rookie go The foregoing conclusions are, I should note based on a rather theoretical approach, i e, could a football coach like Patera, legitimately having in camp five wide receiv ers like Largent, McCullum Carr Johns, and Walker, be found guilty of violating the Act by choosing to let McCullum go rather than Johns or Walker, given the ob jective evidence of union animus shown here My opin ion is that the General Counsel would not on those as sumptions, have a sufficient case 6 Carr v McCullum The more serious question is why did Patera move to acquire Roger Carr in early 1982 and then, just before the season opened, consummate the trade for Carr on September 3, anticipating, as he did, that the trade would result in the release of McCullum9 This is the question that the General Counsel66 and the Charging Party67 both ultimately pose did Patera seek out and acquire Carr for the purpose in whole or in part, of bunging about the release of McCullum in retaliation for his union activity? Before addressing the question of motivation howev er, let us examine the evidence supporting the premise asserted just above that Patera assumed in September that the acquisition of Carr would directly bring about the removal of McCullum Both Patera and Rhome testified to several confer ences between all the coaches after Friday September 3, and prior to Monday September 6, or Tuesday Septem ber 7, whichever was the day on which the final cut' to a 49 player roster had to be made 68 At these meet ings (probably on Sunday night, Monday, and early Tuesday) Patera and his assistants assertedly discussed the whole roster Regarding the wide receivers, Rhome said that he told the others that having just acquired Carr, they would, of course keep him for the other three he would choose to retain Largent Johns and Walker They discussed the possibility of keeping a fifth wide receiver, but could see no justification for this given the other demands of the team Patera told the others that if we let Sam go man everything is going to break loose, referring to McCul lum s union status Rhome pointed out that if McCullum was not going to start he would be unhappy sitting on the bench Rhome further said that they had to do what s best for the football team and that Largent, Carr and Johns were musts (as for Johns, We 88 General Counsel contends that Respondent merely seized upon the opportunity to take Carr in order to give it an excuse to cut McCullum 67 In one sense in fact the principal act of discrimination in this case was the eleventh hour trade the Seahawks made for Carr on September 3 1982 With this acquisition of Carr they finally had the excuse they needed to cut McCullum 68 It appears that most cutting was done on Monday with Tuesday being the cut day for certain players In years past the maximum number of players allowed on each team had been 45 For the 1982 season the League had agreed to allow the clubs to retain four extra players on an inactive list One of these players had to be activated (and presumably another inactivated) at some cutoff time prior to each game in order to play SEATTLE SEAHAWKS couldn t let him go He was our punt returner He s one of the best punt returners in the League") So as between McCullum and Walker, said Rhome, why not keep Byron Walker and develop him? This kid is going to be one of the better players in the League And all those present agreed Rhome s position at the hearing was that the decision was basically his But it is clear on this record that any such decision was ultimately of no effect unless approved by Patera, as Rhome himself testified And it further ap pears that, even though the coaches may have debated earnestly over the weekend about, inter alia, which re ceivers to cut and which to keep, Patera had already made up his mind On Saturday, September 4, according to Patera, and at a time prior to the coaches' discussions about the final cut, he gave McCormick and Pro Personnel Director Chuck Allen a tentative list of who I thought were going to be the players" to be released, and told them to see if there was any interest in trades for the players One of these players was McCullum Patera explained that he gave out the tentative list" of expendable play ers because if the team discovered that it could make a trade for any of those players, they'd inform me, and then we would make that decision quicker than what I would on Monday after the coaches had fully discussed the personnel situation Because of the Saturday trade efforts, counsel for Gen eral Counsel brands the later coaches meeting a sham on the theory that the decision to release McCullum had already been made It does seem quite clear that prior to that exercise in collegiality, Patera s mind was fully fixed on releasing McCullum That he would have the club of ficials calling around to try to make a trade means to me that the matter was determined 69 Moreover, Patera made this state of mind evident when he testified that he told Rhome, after receiving word that the Carr deal had gone through just before the September 3 preseason game, I have no reason to want to see Sam for next week, but you go ahead and play him as you see fit' It would thus appear from the foregoing that when Patera cut the deal for Carr, he anticipated that it was the effective end of McCullum s career with Respondent This returns us to the central questions why go after Carr in the first place? And why in September, take him on knowing that it would result in McCullum s release? There is no need to rehearse the details of McCullum s union activities and Patera s reaction to them Patera conceded that he was bothered by McCullum s Febru ary 19 press conference My impression is that he was probably furious about those remarks, judging from his later criticism of McCullum for impugning the intelli gence of football players and his subsequent extraordi 69 Although Patera spoke of giving out a tentative list of the nine players who were to be released as subjects for possible trades Thomp son and McCormick spoke of efforts being made only regarding two of them McCullum and a placekicker Thompson indicated that Respondent chose to concentrate on these two as the most promising prospects at this time of the year in which trades are the most difficult to make McCor mick testified that he was assigned five teams to contact but none were interested in obtaining McCullum s services Chuck Allen who was also assigned to contact certain clubs did not testify Patera says he spoke to two clubs about McCullum in the course of other discussions 925 nary response to the handshake activity The imposition of fines amounting to thousands of dollars for the con certed handshake (as compared to the $100 fines imposed by the other teams) and the implicit threat to make the players wait as long as possible for a return of their money reveals the depth of Patera's animosity toward the concerted activity In all this, McCullum was there as the personification of the Union holding the press conferences, having the discussions with Patera about the fines, leading the effort to secure the return of the withheld moneys, and threat ening legal action With this history, I have little doubt that Patera s anger at the upsurge of concerted activity (both McCullum s press conference remarks and the players acting in concert against Patera and then morti fying him by triumphing) could have occasioned a par ticular hostility toward McCullum But how does the General Counsel prove, by a pre ponderance of the evidence, that this hostility ` at least in part' contributed to the decision to bid for and acquire Carr, thus effectively leading to the termination of McCullum Here, there is no direct evidence issuing out of the mouth of a central manager which would tend to show such motivation But that is true in almost all these cases, and it has been recognized over and again that, as in all areas of the law involving motivation, circumstan tial evidence may well suffice in 8(a)(3) proceedings Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966) In examining the relevant circumstances, it is sensible to consider the inconsistencies, contradictions, and inex plicabilities in Respondent's case When one sees enough such anomalies in a party's story, one begins to question the fundamental reliability of the account the party is trying to put across The following circumstances cast doubt, I think, on the legitimacy of Respondents motivation I I disbelieve Patera s testimony that prior to the ac quisition of Carr, he had asked Rhome who the latter thought should be released if the team happened to ac quire Carr and that the two men had agreed it should be McCullum This testimony popped out on Patera s cross examination to explain why, when he told Rhome on September 3 of Carr s acquisition Rhome had asked how much of McCullum Patera cared to see in the preseason game that night To explain Rhome s relating of the Carr trade to the playing of McCullum Patera told us for the first time that he had previously discussed with Rhome the question of who would be eliminated in the event of Carr s recruitment He described the conversation And that s when [Rhome] said, well I'd like to keep five And I said no, now you re begging the question Tell me who you re going to give up And we went down the line, and so forth and he finally said, Sam McCullum And I said I agree' This testimony clearly intends to refer back to a simi lar conversation alluded to in Patera s earlier testimony ('And that s when [Rhome] said') But in that previous testimony, Patera had placed such a conversation only in the post Carr acquisition discussion among the coaches about who to eliminate (in describing that conversation 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Patera had testified, Inter alia, Well, Jerry Rhome would have liked to have as many receivers as he could possib[ly] have") 70 Rhome did not testify to a conversation preceding Can s acquisition in which Patera had asked him to spec ulate about the effect of such an acquisition, although he did testify to another Can related discussion with Patera I believe that Patera simply created this conversation on the spot at the hearing, and I think that reflects adverse ly on his general credibility 2 I doubt Patera's testimony that he had `project[ed] ' Johns as the starting split end after the first preseason game ' I conclude that Rhome was probably recom mending at training camp that Johns could be a starter in 1982, based on the worksheet evaluations However, I find questionable Patera s testimony that he ' project[ed] ' Johns as the starter after the first preseason game " The evidence is that McCullum started all four presea son games Patera testified, speaking of the team in gen eral, that the starters from the previous year are used to start preseason games, and very seldom' (with the ex ception of quarterbacks) does anyone else start, unless it is very obvious that [the newcomer] was the best in the position The evidence shows, however, that in the 1982 preseason, aside from the new quarterback, at least three other new players (a guard, a tackle, and a tight end) started preseason games, replacing the former in cumbents, three is a number that does not seem to qual ify as very seldom " Although Patera did not testify that he had actually "decided" after the first preseason game that Johns would be a starter, but rather had projected that notion it is hard for me to believe that any such idea projected" after the first game would not have suffi ciently hardened into a decision by the final game so as to afford Johns the opportunity to start at least one pre season game as the other newcomers noted above And what this could suggest is that Patera really had not made up his mind to start Johns until he knew that he had Carr and could thus terminate McCullum, if he felt that he had to retain McCullum, he might well have kept him as the starter while bringing Johns along 71 3 I entertain further suspicions about the following statement made by Patera to the press after McCullum was fired Sam was a very productive wide receiver The thing is that the other receivers can do something more with the ball after they catch it A lot of play ers can catch the ball The four we ended up keep ing are capable of doing something with it 70 In point of fact the discrepancies burgeon because in Rhome s ac count of the post Carr precut discussion he has himself protesting the idea of retaining five wide receivers Rhome testified that when the idea of keeping five receivers was thrown out (he does not identify the thrower) Patera said that to do so would require getting rid of a quarter back to which Rhome responded lack we can t get rid of a quarter back And Rhome further testified I just felt you know like it was very unfair if I said I want to keep five wide receivers 71 Although Patera knew prior to the September 3 game that the trade for Carr had been agreed to the trade was conditional on Carr passing a physical the following day The phrasing of this statement suggests that the princi pal factor (while McCullum was very productive, `[t]he thing is") setting McCullum apart from the other wide receivers was that they can do something more with the ball after they catch it " There are three references to such a problem in this record Two of the references are Rhome s testimony indicating that he thought this to be a secondary problem of McCullum's, and Smith s tes timony that Rhome mentioned it as a problem after the discharge, the former statement was of course made by Rhome after Patera had already made his statement to the press, it is not clear that the latter one was made before or after that press conference The other is McCullum s testimony that during film sessions follow ing the 1982 preseason games, he was criticized for not run[ning] very well after catching the ball , this has been previously discussed Nowhere else in this record do I find any mention of such a problem, either by Giddings or Webb or in Rhome's weekly evaluations It simply does not appear to have been regarded as a major fault of McCullum's and I find it hard to understand the importance seeming ly assigned to it by Patera The absence of any reference to the issue of a "deep threat capability is striking 4 I cannot but look with profound suspicion on the testimony about drafting for 'excellence' in the face of Rhome s casual testimonial references to discussions among the coaches about the possibility of having a draft at that position' While, as earlier indicated, Pa tera s (although not Thompson s) hypothetical allusion on cross examination to considering the factor of position toward the bottom of the draft makes it possible, per haps, that such discussions could occur, it does seem in conceivable to envision the coaches sitting around in January and talking intelligently about whether they should trade to get a needed player or, in the alternative hope that they will fortuitously find someone useful toward the end of the draft Whether we need a draft at that position surely implies a more methodical determi nation to plan to do exactly that 5 The most serious circumstance is the evidence indi cating that Patera misrepresented at the hearing both the nature of the conversation held by the coaches in Janu ary 1982 and as well the underlying situation regarding Largert As discussed Patera described a perilous situa tion in which the other teams were capable of tak[ing] Largent away with any type of defense in which Re spondent was running out of things to do," and in which the acquisition of a deep threat was unlike previ ous years, a must But to offensive coordinator Rhome, who attended the conference and who should know about this subject if anyone does nothing was new in 1982 'It wasn t necessarily more important It was just like it had always been through the years 82 wasn't any more, you know, the interest on that wasn t any more in 82 than it was in 81, 80 or 79' and the statistics certainly seem to support a conclusion that mat ters had not materially declined Rhome did testify, however, that the team was con stantly looking for a deep threat receiver and that there was a discussion at the January conference about the SEATTLE SEAHAWKS need for another wide receiver He said that he told Patera at the January meeting that he thought the team `needed another wide receiver Not necessarily to take the place of Paul Johns and Sam McCullum but we needed another wide receiver We needed somebody to help Largent He also told Patera that if we can t get somebody, that Paul Johns had an excellent chance of becoming a starter on our football team, but, you know he has some deficiencies and he s going to have to improve on them " Rhome s testimony, while a bit hard to interpret here, seems to be speaking of either Johns or someone taking over McCullum s starting position But Rhome made clear that the conversation was no different than in prior years `[E]ach year I would tell Jack, you know our weaknesses, what we need Every year it was a deal where we need another wide receiver Not necessarily to take Sams place but another wide receiver One that could do what we were looking for We could use Sam maybe as a back up 7 2 To the extent that Rhome s testimony indicates that a discussion of the need for a deep threat replacement for McCullum took place at the January 1982 meeting, I find that difficult to believe He himself made it evident that no special concern existed in 1982 about such a need Furthermore, it is not easy to conceive of these coaches discussing every year" the asserted requirement for a bomb receiver,73 and then, season after season ignoring that perceived need while McCullum kept rolling along 74 The fact is that at the hearing both Patera and Rhome identified by name only two real contenders for McCul lum s starting position in the 6 years of the team s exist ence-Raible and Ferguson But Raible was with the team from its start and was kept on as a reserve receiver for six seasons long after said Patera it became obvious that he could not successfully challenge McCullum And Ferguson, as we found out later from Thompson, came aboard briefly in 1978 only because McCullum was sen ously injured There is no indication that Respondent had prior to 1982 ever attempted, when McCullum was healthy to work out a trade to bring into its camp a promising deep threat wide receiver to replace McCul lum 75 And on the evidence found above, there is no reason to believe, as of January 1982 that Patera would have thought of 1982 as a must year for accomplishing that result Thus, I believe that Patera was not telling the truth when he testified (1) that as of 1982 Largent was being 72 It should be noted that the idea of using McCullum maybe as a backup was ignored when in May 1982 Respondent initially offered Sam and a draft choice to Baltimore in trade for Carr and Pratt Such a trade presumably would have left Respondent still looking for a reliable fourth receiver-Walker was not yet on the scene-but apparently Patera had no concern on that score Why Patera thought that Baltimore might be interested in acquiring McCullum as (I assume) a substitute for Carr is not the subject of testimony 73 Something along the lines I suppose of Well we really ought to try to get that deep threat this year We sure should 74 I regret having to discredit Rhome on some portions of his testimo ny He struck me as a decent individual but there appears in his testimo ny an indication of a desire to be protective of Patera and Respondent 75 It was certainly in Respondents interest to present any such evi dente 927 rendered ineffective by the lack of a deep threat capabil ity on McCullum s part and (2) that the coaches had agreed in their January 1982 meeting that this problem had caused the acquisition of a deep threat receiver to be a must in 1982 76 Having so concluded, I believe it ap propnate to infer that Patera felt that such lies were nec essary to camouflage what he perceived to be his own questionable behavior in the March approach to Carr, by leading this tribunal to believe that the necessity for the replacement of McCullum had already been decided on prior to McCullum's controversial February press confer ence This willingness to lie reasonably gives rise to the inference that Patera was attempting to conceal a wrong ful motivation, and also that he cannot be trusted on any point in issue See Shattuck Denn Mining Corp v NLRB 362 F 2d 466, 470 (1966) (If [the factfinder] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive Moreover, he can infer that the motive is one that the employer desires to con ceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference ) Of course, the argument can be made that when McCormick came to Seattle and talked about the Balti more personnel, including Carr, Patera might have become interested in any event That is always possible, but Patera told us no such straightforward tale What he said, untruthfully, is that a new and urgent need existed in 1982, as enunciated by himself and the other coaches in January, and that in speaking affirmatively to McCor mick in March about Carr, he was acting pursuant to that earlier stated need 77 By implication Patera was telling us that had it not been for this nonexistent must need, he probably would not have attempted to trade for Carr But if there was no such deep threat imperative in early 1982 (and there was not according to Rhome and the statistics) there is no reason to believe that absent the very notable fact of McCullum s protected press conference activity in February, Patera would have done anything different than he had for six seasons For the fact is that Patera did not need McCormick to tell him that Roger Carr was a good and potentially helpful football player The name and ability of Roger Carr had surely been known to Patera since 1974 and it is obvious from the records silence that for 6 years, Patera had attempted to acquire neither Carr nor any other deep threat receiver to replace McCullum In 1982, 1 month after the press conference which bothered Patera, the lure of a Roger Carr had become magnetic and, indeed McCormick testified that Respondents first offer to Baltimore was McCullum and a draft choice But the pivotal difference between 1976-1981 and 1982, as spelled out by Patera, simply did not exist 76 If Respondent did anything between early January and late March when McCormick happened into camp to satisfy this must number one offensive priority it has failed to so demonstrate on this record 77 Patera said [W]hat I did was call [McCormick] in and have him evaluate the Baltimore Colt team and I gave him some parameters upon his completion of evaluation as to how would those people that he eval uated in particular help us in the positions I had named-center guard tackle and wide receiver 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The record shows that Roger Carr was a superior football player, likely a better all round wide receiver than McCullum, at least earlier in their respective ca reers, and probably more adept than McCullum in 1982 at catching the bomb But prior to 1982, so far as this record shows, Respondent had never put forth any effort or shown itself willing to pay any price at all to obtain Carr or anyone else like him to replace McCullum, and had displayed only the most passive sort of hope that a deep threat might someday perhaps turn up in camp 78 Now Patera tells us that the attempt to acquire Carr in 1982 was simply part of his pre February resolve to find someone to take McCullum s place, a resolve reached in January in a falsified conversation about a nonexistent must' need I certainly cannot say that Patera's interest in obtaining Carr concerned itself solely with a desire to get rid of McCullum, but in these circumstances, which include serious lying and obvious trepidation by Patera about the appearance of his motivation, intense animus toward player independence, as especially reflected sub sequently in the solidarity handshake matter, and Patera s unprecedented behavior attributed to both a fabricated premise and conversation in January, I believe it right to infer that the approach to Carr was spurred in the first instance by McCullum's legally protected behavior That sort of motivation is all that the Supreme Court requires Of course, the legal issue presented here is not why Patera first approached Carr in March, but whether, in releasing McCullum in September, he engaged in unlaw ful discrimination In my view, as pointed out, the evi dence makes clear that the acquisition of Carr on Sep tember 3 inexorably foreshadowed the release of McCul lum on September 7-Patera plainly had his mind made up And there is no reason to believe that in actually ac quinng Carr on September 3, Patera was not motivated by the same reasons that aroused his interest in Carr in March It is true that some things had changed in that time period but I think that it is important to focus here on not only what happened at various times in 1982, but also on what happened in 1983 For it was on June 7 of this year that Patera came into the courtroom and dis sembled about (apparently among other things) what had aroused his interest in Carr in 1982 That sort of mendac ity long after the events permeates the case and makes it fair to believe that the unlawful motive was pervasive throughout The factors earlier alluded to strongly support an in ference that the attempt to acquire Carr and the eventu al acquisition, were animated at least in part by a pro scribed intention Respondent would contend that the in ference is dispelled by various factors including the evi dence showing that Carr was a more useful player than 78I am aware that Giddings expressed an opinion at the end of the 1981 season that Seattle needed a bomb WR Because Seattle had never had such a creature it would seem likely that Giddings may have been expressing a similar sentiment for 6 years Moreover at the hearing Giddings stated his own view of what Seattle needed as of 1982 [W]hen I talk about needs it s something that you must put a priority on Because they had three [Largent MCullum and Johns] they dtdn t have to put a priority in the draft basically to go get wide receivers (Emphasis added) Giddings apparently would have settled for the three players plus a reserve and would not have expended a high draft choice for an other receiver McCullum and that in any event Respondent showed that it was not terribly anxious to get Carr Much of the evidence on this score is also pertinent to the question whether, pursuant to Transportation Management, supra, Respondent has established by a preponderance of the evidence that it would have dispatched McCullum even if he had not engaged in protected activity I shall con sider the evidence on these issues below Respondent argues that its failure to increase its offer of a 1984 third round draft choice when urged to do so by Baltimore on two occasions in late August, and its actual lowering of that choice when Baltimore called again September 1 are persuasive evidence that Re spondent was not terribly anxious to acquire Carr In the milieu of this case, I am not sure that even these undis puted facts, testified to only by Respondent's witnesses, are entitled to credence But on the assumption that the events so unfolded, they need only mean that Respond ent had not become unbalanced with rage at McCullum, and that it simply drew the line as a price for Carr at a third round choice in 1984 (Thompson testified that the first through fourth round choices are considered high ) The alleged decision to lower the bid to a fourth round choice after September 1 when Accorsi called back, would clearly be nothing more than a prudent as sessment that no other team was offering as much as a 1984 third round choice After Respondent had already passed up two chances to raise its original bid of a third round choice, Accorsi assuredly knew that Respondent was not going to increase its offer at that late date, and yet he sought to reopen negotiations telling Thompson that no fair offer had been received It must have rea sonably appeared to Respondent that in these circum stances, 10 days before the season opened and with Carr refusing to play in Baltimore, the sensible move was a re duction in the offer As Thompson put it, after Respond ent heard from Baltimore on September 1 Obviously we thought that they were starting to panic a little bit, too There was, of course always the possibility of a reinstitution of the original offer if it became necessary Patera so acknowledged at the hearing he advised low enng the offer but [w]e can certainly talk about what we had offered them before I further note that the final price arrived at would, under the terms of the trade, again rise to a third round choice if Carr met some conditions that do not seem very demanding,' 9 and also that the value of the Pratt trade was substantially improved in Baltimore s favor Moreover as indicated, Thompson considered a fourth round draft choice to be a high one 80 Respondent would further contend that Carr was a su perior player compared to McCullum, and that in any event the situation changed meaningfully between March and September, thus negating the inference of unlawful 80 McCullum testified that as the starting split end he had normally played about 95 percent of the time The choice would rise to a third round if inter alia Carr played in 50 percent of the offensive plays 80 In the NFL draft choices are valuable legal tender Players cannot be purchased for money they can only be drafted or traded for draft choices and other players SEATTLE SEAHAWKS motivation in the original approach to Carr and in the decision to take him Although I have considered that argument, I have concluded that the other evidence ear her discussed outweighs the evidence relating to Carr s performing abilities and the needs of the team and that, in fact, the meet related evidence is at best mixed and could even be read as tending to strengthen the inference of antiunion motivation As for Carr s primacy, it does appear that he was a fine football player and had been more of a bomb threat (according to Giddings, a red" one) than McCullum As earlier discussed, however, Respondent had not for 6 years felt impelled to search out such a replacement for McCullum and had no more reason to do so, according to Rhome, in the year in which McCullum s union activ ity came to the forefront In addition, although it is true that Giddings thought Carr to be endowed with a number of blue features and McCullum with almost none at the end of the 1981 season, he colored Carr an overall red (down from blue minus) and questioned whether he might be descend ing ' At the same time, Giddings had McCullum as a ' red descending" but having unproved self in the last 3 years In the preceding 2 years, Carr s long pass effectiveness as compared to earlier years seemed to have dropped if average yardage is any criterion at all In 1980 Carr caught 61 passes in 16 games for a 15 1 yard average and 5 touchdowns, in 1980, McCullum caught 62 passes for a 14 1 average and 6 touchdowns In 1981, Carr caught 38 passes in 15 games for a 15 4 average yardage and 3 touchdowns, while McCullum, in that year in which the Seahawks running game was emphasized over passing starting at midseason, caught 46 passes in 16 games for a 12 3 yard average and 3 touchdowns 81 Giddings testi feed that at the end of the 1981 season, he rated McCul lum as a solid red receiver who had become a better receiver' over the last three years, and testified fur ther, I don t think that there s any question that I think Sam McCullum is a good football player [T]here s very few smarter than this gentleman at his craft [T]here aren t certainly that many red receivers in this league And while Webb held that McCullum was not a deep threat although he ran an excellent short route he had noted in a December 13 1981 evaluation that McCullum had great hands in that game and was on top with moves meaning that he had beat a deep de fender by clever running rather than speed McCormick significantly conceded that he could have told some Seattle players that he wished Sam was on his team because I think Sam is a good receiver And the enco miums by Minnesota s coach Grant, should not go unre marked Rhome s evaluations during the preseason, while per sistently critical of McCullum for an aspect of his play that allegedly had never been his forte-catching the deep ball-(which criticisms appear here earlier and to 81 At the hearing Patera noted that McCullum had been very pro ductive in the first seven games of the season before the emphasis was put on running having caught 27 passes Over a normal 16 game season of course that could amount to about 64 catches 929 which I have elided reference below) also spoke approv ingly of his work 82 Although Webb evaluated McCul lum as hypothetically a reserve player for the Cleveland Browns after watching him in the 1982 preseason, the record tells us nothing about the caliber of those receiv ers In addition it appears that Webb s standards may tend to be more demanding than those of Patera s and Rhome s given their evident lack of agreement on the impressiveness of Byron Walker Although Rhome s weekly evaluations show that he was envisioning Johns as the 1982 starter, he testified that the reduction of McCullum to somewhere between starter and reserve had a lot to do with the competi tion, since [a]ll of them can t be starters At the same time, as late as September 3, Rhome was writing of McCullum, Runs good short routes But that is essen tially all that McCullum had ever really been asked to do, and Respondent had evidently been satisfied enough with that talent for 6 years, until he became an active and vocal union representative During this entire evaluation period, McCullum was under stress Rhome demonstrated his understanding of that when he concededly spoke to McCullum in the first week of camp about that pressure Patera and Rhome surely must have recognized such pressures even more keenly beginning the week of August 9 with the onset of the distracting handshake affair in which McCullum was squarely in the middle from the beginning until the end (if, indeed, it can be thought that such a matter can abruptly end) Reasonably they both would have known that McCullum could hardly have been performing at his best under such strain He was, nonetheless, dumped, purportedly in the service of enlisting the assistance of the risky, immediately useless Carr who was pur chased at a substantial price to help out Largent, who actually required no help to begin with I suspect that Rhome had doubts about this as well, despite his testimony that his response to the news of the acquisition of Carr was to exclaim Hey that s great " Rhome testified that even without Carr he was pretty much satisfied from my point of view with Byron Walker Paul Johns were going to get things done for me Roger Carr was nothing but a bonus Rhome's state- ment to Sherman Smith when Smith mentioned the Carr trade sounds as Smith told it, as if Rhome did not think it was a very good idea Yeah, but I11 tell you one thing, I didn t have anything to do with it 83 This ambivalence is further conveyed, I think in Rhome s account of the precut meeting He testified that he said I can t rate Roger Carr because I haven't seen him Now I'd seen him before but I can t rate him now so you ve got to be-you know you can't just eliminate Roger Carr because you just got through trading for him ' 82 August 5 Working hard August 12 Very quick and smart Does excellent job inside on blue and is good short receiver August 19 Does well on short routes Catching ball better than week before Run ning better deep routes August 27 Hustles Very smart September 3 Working hard Runs good short routes 83 Rhome s own testimony suggests that he answered in this manner He said that Smith asked What do you think about the trade and he replied that he didn t have anything to do with the trade That is an obviously defensive answer to such a neutral question 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To me, this is tonally a far cry from a reaction of Hey that's great There are factors which, the General Counsel and the Charging Party argue, militated enough against the ac quisition of Carr as to cast doubt on the legitimacy of the decision It is appropriate to consider such arguments in deciding the questions whether Respondent has effec tively vitiated the inferences arising from the evidence adverse to Respondent, and also in determining whether Respondent has effectively satisfied its own second step burden of persuasion under Transportation Management Giddings had listed Carr in his 1981 book as very risky concerning his health Presumably Respondent knew about Carr s health problems in March, and I cannot imagine that it would knowingly plunge ahead to acquire a player it regarded as a high risk, on the other hand, McCullum had a more sound health record and very likely Respondent knew that it was taking a greater chance with Carr than with McCullum Again, there is the contention that Respondent impov enshed itself by giving up the team leadership qualities of McCullum I do not doubt that McCullum was such a leader, as his teammates averred Although Patera and Rhome, at hearing, questioned McCullum s leadership role I doubt that they failed to perceive this union player representative, 6 year veteran, and 1980 winner of the teams most valuable player award, as one of the leaders of the team Patera testified that leadership quali ties were `important to him That Carr had not been in a professional training camp in 1982 and did not know Seattle s offensive system are other factors seemingly adverse to his acquisition al though how seriously I cannot be sure McCormick said that he had heard that Carr had been working out, but that is not the same as being in camp The fact that Carr would be lost to the team for some period during the season was also a negative consideration Raible testified that Seattle has a relatively complicated offensive system and that McCullum s knowledge and experience with the system was of great value ' This assessment was not directly controverted McCormick agreed at the hearing that Carr s value did go down because he was not going to be here to work out, to actually develop the skills the timing with the quarterback the knowledge of the routes, and everything else The foregoing reasons generally tend to argue against the replacement of McCullum by Carr and so do other considerations One important factor is that while in March, Respondent had no certified deep threats to speak of, in September, and without Carr, it potentially had two Johns, now seen as a potential starter, and Walker, of whom Giddings said at the end of 1982, Can bomb For the first time in its history, Respondent was ankle deep in deep threats One may question how signif icant to the team the late arriving Carr might have seemed in that context, until one recalls that the hand shake episode had occurred only 2 weeks before and that without Carr there would be no obvious explanation for letting McCullum go Of course, I recognize the possibil ity that Johns and Walker might not have worked out, but it certainly appears to be true that Respondent was suddenly rich with potential deep threats after evidently not having bothered even looking for any for 6 years Such a capability having been the purported reason for attempting to acquire Carr in the first place, one won ders how he still could have seemed worth the fourth (or possible third) round choice expended for him to replace a veteran thoroughly familiar with the system and ready to play As discussed Rhome testified that he told Patera that Johns should be the starting split end, I will assume that to be true, although, as indicated, Rhome seemed to believe the choice to be a close one It can be argued however, that even if it was simply possible that Johns might be the starter, that fact not only indicated that McCullum s effectiveness had declined but also that the potential nonstarting status of McCullum would naturally have inclined Patera to be more interested in obtaining Carr, pursuant to his stated policy of not wanting to have former starters on his team As for McCullum s possible decline that subject has earlier been addressed To me, Rhome s evaluations indi cate simply the same McCullum who had played for Re spondent for 6 years, albeit under known stress for the present period, and a tentative belief that Johns was slightly better a belief that might not have survived the first regular season game But the evidence does not indi cate that Respondent in any other instance went out of its way in the last week prior to the season to acquire replacements for other starters who were losing that role In 1982, six 1981 starters aside from McCullum had lost out to newcomers when the season opened, the only one who was cut from the squad was Newton, whose re placement, Pratt had been with the team since July The only last minute acquisition was Carr so far as the record shows, a player for whom no other team had been willing to pay a third round 1984 draft choice It seems to me that when an employer comes into a hearing and misrepresents the circumstances that prompt ed him to become interested in securing a replacement for a union activist it is fair to assume that the inference of unlawful motivation to be drawn therefrom applies not only to the original effort to acquire the replacement, but also to the subsequent acquisition Under Transporta Lion Management it is up to the employer to meet or neutralize that showing and if it does not, it may still avoid a finding of violation by demonstrating by a pre ponderance of the evidence that the worker would have been fired even if he had not been involved with the Union I do not conclude that the changed circumstances in September 1982 neutralize the inference of unlawful mo tivation which I have drawn Respondent had never before had a deep threat or tried very hard to find one Now it had a Johns and a Walker and essentially the same McCullum it had for years, I am not persuaded given the evidence tending to show unlawful motivation, that in any other year it would have reached out for Carr spending a valued draft cl•oice in the process, at the last minute Similarly, I do not view the same evidence as demon strating that Patera would have taken on Carr in any event Patera did not testify that the course of events in SEATTLE SEAHAWKS the preseason played any role in the ultimate acquisition of Carr, as far as the record shows, that followed ineluc tably from the original expression of interest Nor does it appear to me from the objective evidence that Carr would normally have been acquired anyway as a conse quence of the developments in the 1982 preseason As noted above other 1981 starters who fell from grace during the preseason were not in fact replaced as of the time the season began Respondent had not in the past, it seems clear, spent any draft choices to acquire a player like Carr, can it be said that it would have routinely done so in 1982, given the excitement about Johns" It is, of course possible, but I do not believe that Respondent has demonstrated by a preponderance of the evidence that such a decision would likely have been made In summation, I do not believe that Patera was, as he says, inspired to seek out a replacement for McCullum in early 1982 because McCullum was not doing enough to help' out Largent, or that the coaches had agreed in January that such replacement was a must ' I therefore infer from the fact and nature of this fabrication, and the other suspect testimony, that the approach to Carr, after six seasons of contentment with McCullum 's style of play, came about because Patera was angry with McCul lum for his abrasive remarks made as a union representa tive in February There is no reason to suppose that this unlawful impulse had lessened at the time the actual de cision to trade for Carr was made, and there is every reason to believe-namely, the handshake episode-that it had increased Even though the illusory must' predi cate for seeking out Carr-the need for a deep receiver to help Largent-could be thought to have vanished with the evident improvement of Johns, and even though the sensational Byron Walker had arrived as unexpect ed manna from heaven, Patera still spent the high draft choice (which, under the terms of the trade, could rise to an even more highly valued third round selection) to remove McCullum I recognize that Patera had as much of a personal stake in protecting the value of the team as anyone After two losing seasons, his job was probably on the line But logic does not always control action and emo tion often overrides judgment Moreover, Patera s view of the seriousness of the disciplinary principles involved and the appropriate reaction seem to have been unique Of the coaches who fined players for the handshake, none levied more than $100 Patera on the other hand, wanted to exact thousands of dollars from his players, an action that might well be thought to be seriously demor alizing just a month before the season began This intense desire to retaliate against the players concerted activity suggests a personality that was not inclined to brook the sort of critical independence displayed by McCullum in February and again in August It may indeed be that in going after Carr in March, Patera thought that he might improve his team But the question is, why, after 6 years, he suddenly considered it worth trading away a valuable draft choice to accom plish such an improvement His apparent willingness to lie in explaining that development, as well as the other matters earlier discussed, leads me to believe that an other, unlawful, motivation existed A purpose to de 931 ceive generally means there is something to conceal I can only construe Patera s fabrication of both a conver sation and a perceived need as revealing a sense of guilt about the legitimacy of the decision to try to obtain Carr and a concomitant effort to conceal that guilt and lack of legitimacy Along with the other evidence of Pa tera s general lack of credibility (including my personal impression of the manner in which he testified), his dem onstrated and intense hostility toward the players Sec tion 7 activities, and the years of acceptance of McCul lum s qualifications until the year in which McCullum became an upstart player representative, I am persuaded that the General Counsel has demonstrated that the re lease of McCullum was prompted at least in part, and very probably significantly, by his activities on behalf of the Union Once such a showing has been made, the Supreme Court has said in Transportation Management, any other overriding legitimate motivation must be proved by the offending employer The employer is a wrongdoer, he has acted out of a motive that is declared illegitimate by the statute It is fair that he bear the risk that the influ ence of legal and illegal motives cannot be separated, be cause he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing " In the present case, the Respondent has had the opportunity pursuant to Transportation Manage ment to establish by a preponderance of the evidence that it would have acquired Carr and discharged McCul lum even if he had not engaged in union activities I con elude that Respondent has failed to so demonstrate On these findings I conclude that the Respondent vio lated Section 8(a)(3) and (1) of the Act CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 By discharging Sam McCullum on September 7, 1982, Respondent violated Section 8(a)(3) and (1) of the Act 3 The foregoing unfair labor practice affects com merce within the meaning of Section 2(6) and (7) of the Act 4 Counsel for Respondent technically violated the se questration order in effect in this case THE REMEDY Having found that Respondent violated the Act I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent unlawfully discharged Sam McCullum on September 7, 1982, I shall recom mend that Respondent be required to offer him immedi ate and full reinstatement to his former position or to a substantially equivalent position , without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings and other benefits he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which he normally would have earned from the afore said date of his termination to the date of Respondent s offer of reinstatement, plus other benefits, less net earn ings during such period The backpay provided shall be computed on a basis of calendar quarters in accordance with F W Woolworth Co, 90 NLRB 289 (1950), with in terest as prescribed in Isis Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977) The General Counsel has requested on brief that, in addition to the reimbursement of backpay and benefits lost, if any, Respondent should be required to make McCullum whole for additional expenses incurred as a result of the discrimination The Board has approved the statement that discnminatees who move to other com munities to obtain interim employment are entitled to be reimbursed for their closing costs and other incidental expenses, including the expenses involved in transporting their possessions Sioux Falls Stock Yards Co, 236 NLRB 543, 562 (1978) That a professional football player would be required to move elsewhere to gain a livelihood was clearly foreseeable to Respondent, and application of the quoted principle is manifestly just in this case I shall therefore further recommend that Re spondent make McCullum whole, with interest, for all reasonable costs associated with moving himself and his family to Minnesota I shall also recommend posting of the traditional no tices and other customary relief On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed84 ORDER The Respondent, Elmer Nordstrom, Managing Part ner, et al, d/b/a Seattle Seahawks, Kirkland, Washing ton, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against employees in regard to their hire tenure of employment, 84 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses or other terms and conditions of employment, to discour age membership in labor organizations (b) In any other manner interfering with, restraining or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Sam McCullum immediate and full reinstate ment to his former job or if that job no longer exists to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina tion against him in the manner set forth in the remedy section of the decision (b) Preserve and on request, make available to the Board or its agents for examination and copying, all pay roll records social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (c) Post at its Seattle, Washington facility copies of the attached notice marked Appendix' 85 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondents author ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced, or covered by any other material (d) Remove from its files any reference to the unlaw ful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 85 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board