National Football League

National Labor Relations Board - Board Decisions

Sep 30, 1992

309 N.L.R.B. 78 (N.L.R.B. 1992)

78
309 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On March 21, 1991, Administrative Law Judge Benjamin Schles-
inger issued the attached decision. The General Counsel and the Re-
spondents filed exceptions and supporting briefs, answering briefs,
and reply briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
In the absence of exceptions, we adopt the judge’s finding that Re-
spondent National Football League Management Council and the 28
constituent member clubs—which are also respondents—are not a
single employer. However, the Respondents conceded, the judge
found, and we agree that the Respondents are jointly and severally
liable for the violations found herein. For ease of reference only, we
have referred in this decision to the Respondents collectively where
appropriate.
The judge, in par. 7 of sec. III,C,2,g(4) of his decision, inadvert-
ently stated, ‘‘Davis must have been so advised that Price was going
home’’; we find he meant to state: ‘‘Davis must have been so ad-
vised that Booth was going home . . . .’’
We find it unnecessary to rely on Clear Haven Nursing Home,
236 NLRB 853 (1978), cited by the judge in sec. III,C,2,k of his
decision. We note that Clear Haven, to the extent inconsistent, was
overruled by the Board in Independent Stave Co., 287 NLRB 740
(1987).
3 The Respondents’ request for oral argument is denied, as the
record, exceptions, and briefs adequately present the issues and the
positions of the parties.
4 Each NFL player is required to sign a standard ‘‘NFL Player
Contract’’ which provides, inter alia, that ‘‘[w]ithout prior consent
of club, player will not play football or engage in activities related
to football otherwise than for club or engage in any activity other
than football which may involve a significant risk of personal injury
. . . club will have the right . . . to enjoin player by appropriate
proceedings from playing football or engaging in football-related ac-
tivities other than for club or from engaging in any activity other
than football which may involve a significant risk of personal in-
jury.’’
5 The Detroit Lions players did not report until November 18,
1982. The New York Jets did not allow their players to report until
November 18, 1982, after the club was ordered to do so by then-
NFL Commissioner Pete Rozelle. Both teams played the following
weekend: the Lions lost to the Chicago Bears, 20–17, on a last-sec-
National Football League Management Council and
the Constituent Member Clubs of the National
Football League and National Football League
Players Association, AFL–CIO
The Dallas Cowboys Football Club, Ltd., d/b/a Dal-
las Cowboys and National Football League
Players Association, AFL–CIO
Chicago Bears Football Club, Inc., d/b/a Chicago
Bears and Steve Fuller. Cases 5–CA–19170, 5–
CA–19508, 5–CA–19559, 5–CA–19415, and 5–
CA–19773
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
This case presents significant questions arising from
the 1987 strike by the National Football League’s pro-
fessional football players.1 These include: whether the
Respondents lawfully adopted and enforced a rule re-
quiring strikers to report for work by Wednesday of a
given week in order to be eligible to play in and be
paid for the following weekend’s games; whether the
Respondents lawfully refused to pay the salaries of
certain injured players during the strike; whether the
Respondents unlawfully bypassed the Union and dealt
directly with the employees; whether Respondent Dal-
las Cowboys unlawfully threatened to withhold de-
ferred compensation from certain players on account of
their participation in the strike; and whether the New
England Patriots unlawfully threatened reprisal against
strikers.
The Board has considered the exceptions in light of
the record and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions as modified
and to adopt the recommended Order as modified.3
I. FACTUAL FINDINGS
A. Collective-Bargaining Agreements and Strikes
During the Period 1971–1987
The Union was certified in 1971 as the representa-
tive of the active and certain inactive players on the
rosters of all National Football League clubs. Since
1971, the parties have negotiated successive collective-
bargaining agreements, the most recent of which was
effective from 1982 to 1987. Each of these agreements
was signed after strikes of varying duration.
In 1982, the players struck for 57 days during the
NFL season before an agreement was reached with the
Respondents. The Respondents did not hire replace-
ments during this strike. According to NFL Manage-
ment Committee Executive Director Jack Donlan’s
uncontradicted testimony, the Respondent Clubs collec-
tively lost $200 million as a result of the strike.
Donlan also testified that the Respondents obtained
state court injunctions prohibiting strikers from engag-
ing in ‘‘All Star’’ games staged independently of the
NFL.4 There was no testimony concerning efforts by
the players to maintain their physical condition during
the 1982 strike.
During the 1982 strike, the Respondents determined
that each Club had to play nine games in order for the
season to have ‘‘integrity.’’ Because of certain sched-
uling requirements, this could be accomplished only if
the strike were settled in time to play the games sched-
uled for November 22–23, 1982. The strike was settled
on November 17, 1982, a Tuesday, and nearly all the
strikers reported for work the following day.5 All NFL
79NATIONAL FOOTBALL LEAGUE
ond field goal, while the Jets defeated the then Baltimore Colts 37–
0.
6 However, we note that these restrictions were substantially re-
laxed during the strike.
7 All dates hereafter are in 1987 unless otherwise noted.
8 The CEC’s modified personnel rules provided that returning
strikers would automatically be placed on Exempt status, and could
be activated by their Clubs up to 4 p.m. New York time on the Sat-
urday prior to subsequent games (subject to their having satisfied the
striker reporting deadlines previously discussed).
Clubs played a normal schedule of games the follow-
ing weekend. Consistent with the Union’s request,
none of the returning strikers were given medical ex-
aminations or formal conditioning tests to determine
their fitness to play football. Some Clubs asked players
to indicate whether their physical condition had
changed; however the parties stipulated that the Dallas
Cowboys were the only Club which compiled or ad-
ministered written conditioning tests.
B. The 1987 Contract Negotiations and Strike
The parties began negotiations for a successor to the
1982–1987 agreement early in 1987. These negotia-
tions were unsuccessful and, on September 21, 1987,
after the second week of regular season play, the play-
ers went out on strike. The Respondents immediately
began hiring temporary replacements for the striking
players. Because certain Clubs were unable to assem-
ble complete teams in time for the games scheduled
for September 27–28, 1987, the Respondents canceled
those games.
The Respondents also substantially modified the
NFL’s complex personnel rules governing the hiring of
players and their eligibility to play in a game. In 1987,
the Respondents’ (nonstrike) personnel rules permitted
each Club to have no more than 60 players under con-
tract between the start of preseason training camps and
the completion of the football season (i.e., the Super
Bowl). At any given time, each such player had to be
classified by the Club on one of the following cat-
egories or lists: Active, Inactive, Reserve, or Exempt.
The Active list and Inactive lists combined could not
exceed 47 players and the Active list could not exceed
40.
A Club’s Reserve list could consist of players who
(1) retired while under contract, (2) did not report, (3)
left the squad (quit team), (4) were injured, (5) were
found physically unable to perform at the time of their
training camp physical, (6) had a nonfootball injury or
illness, (7) were in military service, (8) were drafted
but never signed a contract, and (9) were suspended or
declared ineligible or expelled from the NFL. Complex
rules not material to this case restrict a Club’s ability
to move a player from certain of the reserve categories
to active status.6
A player could be placed on the Exempt list only
with the approval of the NFL Commissioner. Exempt
players did not count against the Club’s Active list
limit but could practice with their Club. This list was
used for players who failed to report to their Club at
the prescribed time (e.g., players ‘‘holding out’’ in
connection with contract negotiations), but in such
cases the player’s exempt status could last for only two
games. Exemptions could also be granted for players
who left their Club without permission after reporting,
both for the time the player was absent and, if the
Commissioner deemed it reasonable that the player
was not in shape, for a period of time after the player
returned.
Only players on a Club’s Active list were eligible to
play in a game. The Respondents’ rules usually pro-
vide that, for games played on a Saturday or Sunday,
each Club must establish its Active list for the game
by 2 p.m. New York time the day prior to that game.
For Monday night games, the deadline is 2 p.m. New
York time the day of the game.
In response to the strike, the Respondents substan-
tially modified these rules. On September 29, 1987, the
NFL Management Council Executive Committee
(CEC) eliminated roster limits until 4 p.m. New York
time on October 3, 1987.7 Clubs were permitted an un-
limited number of players on their Inactive lists with
a 45-player Active list limit for participating in the
games on October 4–5. The deadline for establishing
the Active lists was set at 4 p.m. New York time on
October 3, and a deadline of 12 p.m. noon local time
on Friday (October 2) was established for signing non-
roster players. The CEC also established a deadline of
12 p.m. noon local time on October 2 for strikers to
report in order to be eligible to play in the Sunday or
Monday games.
On October 1, the above rules were modified to es-
tablish a 3 p.m. Friday New York time deadline for
strikers to report in order to be eligible for that week-
end’s games or for Clubs to sign nonroster players.
On October 5, the CEC further modified its eligi-
bility rules for returning strikers. The deadline for
signing nonroster players was moved back to 4 p.m.
New York time Saturday for teams playing on Sunday,
and to 4 p.m. New York time on Monday for teams
playing that night. For strikers, however, the reporting
deadline was set at 1 p.m. New York time on Wednes-
days. Strikers reporting after that time were not eligi-
ble to play in the following weekend’s game, could not
be paid for that game, and were exempt from counting
against the Club’s Active or Inactive list until 4 p.m.
New York time on the day following that game.8 This
rule was in effect on Thursday October 15, when the
Union advised the Respondents that the strike was
over; on the basis of this rule all strikers who had not
reported prior to the deadline were declared ineligible
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 In the NFL, a player’s annual salary is divided into equal install-
ments for each of the 16 regular season games, and paid on a bi-
weekly basis.
10 Injured players may be placed on the Club’s ‘‘Injured Reserve’’
list under certain circumstances (as discussed more fully below), in
which case they do not count against any applicable roster limit and
may not be returned to the Active list except under circumstances
specified in Respondents’ personnel rules. However, clubs are not
required to place injured players on ‘‘Injured Reserve’’ and their
placement on ‘‘Injured Reserve’’ does not affect the obligations cre-
ated by the player contracts.
11 The Respondents contend that the Union’s offer was not uncon-
ditional because it sought the termination of the replacements and
the immediate reinstatement of all strikers. This assertion is without
merit. Hansen Bros. Enterprises, 279 NLRB 741 (1986) (‘‘where the
striker replacements are only temporary, an offer to return to work
which demands no more than the discharge of those replacements is
perfectly appropriate’’).
to play in the games scheduled for October 18–19 and
were not paid for that game.9
On October 16, the CEC modified its eligibility
rules to return the eligibility deadline to prestrike sta-
tus for the games on October 25–26. Clubs were al-
lowed to retain up to 85 players on their Active and
Inactive lists for those games, including all returned
strikers not on the Reserve list. Clubs were permitted
to activate players from their Inactive list until 5 min-
utes prior to kickoff if a player on the Active list re-
fused to participate. Players on the Inactive list for the
October 25–26 games were paid their contractual sal-
ary for that game.
The Respondents also established special rules for
injured players during the strike. The standard ‘‘NFL
Players Contract’’ essentially provides that a player in-
jured in the performance of services to the Club is en-
titled to medical treatment, at the Club’s expense, and
to continuation of his salary for the rest of that season
only, ‘‘in accordance with the Club’s practice.’’10 In
general, injured players are expected to cooperate in
any prescribed treatments or rehabilitation program,
and to attend team meetings and practices to the extent
requested and able to do so. However, with the advent
of the strike, the Respondent CEC ordered Clubs not
to pay injured players who did not report to team fa-
cilities or who picketed. The Clubs were also ordered
to arrange for such players to continue to receive med-
ical treatment at an offsite facility.
C. Actions by the New England Patriots and the
Dallas Cowboys
On October 6, Billy Sullivan, an owner and official
of Respondent New England Patriots, sent a letter to
employee Lin Dawson concerning the players’ partici-
pation in the strike. This letter stated, inter alia, that
[I] cannot wait [sic] the conclusion of this event
[the strike] to see if I can get someone else to buy
the contracts of people who have acted in such an
unfair manner.
Dawson, a quarterback, was the union player represent-
ative for the Patriots during the strike.
At various times during the 1987 strike, the Re-
spondent Dallas Cowboys sent letters to striking em-
ployees Kevin Brooks, Tony Dorsett, Ed Jones, and
Everson Walls stating that their participation in the
strike would trigger provisions in their player contracts
requiring the loss of deferred compensation payments,
forfeiture of certain bonus payments, and acceleration
of the repayment of certain loans. Brooks, Dorsett, and
Jones crossed the picket line and returned to work after
receiving the letters.
II. ANALYSIS
A. Deadline Rule
The judge found, and we agree, that the Union un-
conditionally offered to return to work on Thursday
October 15.11 For the reasons that follow, we find that
the Respondents unlawfully discriminated against the
strikers by maintaining and enforcing the Wednesday
eligibility deadline to preclude their participation in or
payment for the games played on October 18–19.
The Supreme Court has recognized that ‘‘there are
some practices which are inherently so prejudicial to
union interests and so devoid of significant economic
justification . . . that the employer’s conduct carries
with it an inference of unlawful intent so compelling
that it is justifiable to disbelieve the employer’s protes-
tations of innocent purpose.’’ American Ship Building
Co. v. NLRB, 380 U.S. 300 (1965). If an employer’s
conduct falls within this category, ‘‘the Board can find
an unfair labor practice even if the employer intro-
duces evidence that the conduct was motivated by
business considerations.’’ NLRB v. Great Dane Trail-
ers, 388 U.S. 26, 34 (1967).
On the other hand, if the impact on employee rights
of the discriminatory conduct is
comparatively slight, an antiunion motivation
must be proved to sustain the charge if the em-
ployer has come forward with evidence of legiti-
mate and substantial business justifications for the
conduct. Thus, in either situation, once it has been
proved that the employer engaged in discrimina-
tory conduct which could have adversely affected
employee rights to some extent, the burden is
upon the employer to establish that it was moti-
vated by legitimate objectives since proof of moti-
vation is most accessible to him. Id. at 34.
Applying these principles to this case, we find as an
initial matter that the Wednesday deadline rule clearly
constitutes discriminatory conduct which adversely af-
fects employee rights. On its face, the rule discrimi-
nates against strikers by applying different, and more
81NATIONAL FOOTBALL LEAGUE
12 The right to strike is expressly protected by Sec. 13 of the Act.
In addition, Congress extended the Act’s protections to strikers by
including them within the definition of ‘‘employee’’ in Sec. 2(3). As
the Supreme Court has said, ‘‘this repeated solicitude for the right
to strike is predicated upon the conclusion that a strike when legiti-
mately employed is an economic weapon which in great measure
implements and supports the principles of the collective bargaining
system.’’ NLRB v. Erie Resistor Corp., 373 U.S. 221, 233–234
(1963).
13 Of course, economic strikers who have been permanently re-
placed are entitled to reinstatement only as positions become open.
The Respondents admit that they did not permanently replace the
strikers in this case.
14 The Board has recognized that placing former strikers in a sub-
ordinate or subservient class distinguished only by their exercise of
statutory rights adversely affects employee rights. Oregon Steel
Mills, 291 NLRB 185 (1988), enfd. 134 LRRM 2431 (9th Cir.
1989); Transport Co. of Texas, 177 NLRB 180 (1969), enfd. 438
F.2d 258 (5th Cir. 1971). See also Lehigh Metal Fabricators, 267
NLRB 568 (1983), enfd. 735 F.2d 1350 (7th Cir. (denying striking
welders reinstatement in favor of assertedly better qualified nonstrik-
ers unlawful); Kansas City Power & Light, 244 NLRB 620 (1979),
enfd. pertinent part 641 F.2d 553 (8th Cir. 1981) (denying reinstated
strikers credit for prestrike service toward completion of probation-
ary period found unlawful).
15 Accordingly, we also need not decide whether the General
Counsel otherwise established that the rule was motivated by
antiunion considerations. NLRB v. Great Dane Trailers, above, 388
U.S. at 34.
16 The Respondents admit that LeBaron was the official primarily
responsible for the decision to adopt the Wednesday eligibility rule
for strikers.
17 LeBaron identified franchise players as ‘‘valuable products . . .
that you depend on for the future of your ball club, the future of
your franchise, Eric Dickerson, or people like that.’’
18 The record does not indicate whether a player who reports after
the normal deadline for submitting active rosters for a game has
Continued
stringent, standards for eligibility to participate in NFL
games (and to be paid for such participation). More-
over, the rule also adversely affects one of the most
significant rights protected by the Act—the right to
strike.12 The Board and the courts, applying the prin-
ciples of Great Dane, have long recognized that the
right to strike includes the right to full and complete
reinstatement upon unconditional application to return.
NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 380–
381 (1967); see also Laidlaw Corp., 171 NLRB 1366,
1368–1369 (1968), enfd. 414 F.2d 99 (7th Cir. 1969),
cert. denied 397 U.S. 920 (1970).13
As in Laidlaw, the Respondents—in reliance on
their Wednesday reporting deadline—offered the strik-
ing employees who reported for work on October 15
‘‘less than the rights accorded by full reinstatement’’
(i.e., the right to participate in the games scheduled for
October 18–19 and to be paid for those games).
Laidlaw, supra, 171 NLRB at 1368. Thus, the Wednes-
day deadline adversely affected the striking employees
in the exercise of their right to strike or to cease par-
ticipating in the strike, by prohibiting the full and com-
plete reinstatement, for the October 18–19 games, of
those employees who chose to return to work after the
Respondents’ deadline had passed.14
We need not decide whether, as the General Counsel
contends, the Respondents’ conduct was inherently de-
structive of employee rights. Even assuming that the
impact on employee rights of the Wednesday deadline
rule for strikers was ‘‘comparatively slight,’’ the bur-
den still rests with the Respondents to establish ‘‘le-
gitimate and substantial business justifications’’ for the
rule. For the reasons that follow, we find that the Re-
spondents have not made the required showing.15
The Respondents assert that the Wednesday deadline
was justified by the Clubs’ need for sufficient time to
prepare returning players for game conditions. In this
regard, the Respondents presented evidence that the
strikers’ physical condition would be expected to dete-
riorate as the strike progressed. In addition, NFL Man-
agement Council official Eddie LeBaron testified that
players could not maintain their ‘‘football condition’’
without participating in practices involving physical
contact.16 The Respondents also assert that they par-
ticularly did not wish to risk injuries to so-called fran-
chise players.17
The Respondents also assert that the rule is justified
by their goal of ensuring that each Club operates from
the same competitive position. Thus, the Wednesday
deadline would give each Club the same amount of
preparation time with returning players, prevent situa-
tions in which a replacement squad was ‘‘mis-
matched’’ against a squad composed of veterans who
had reported late in the week, and ensure that Clubs
could prepare for specific players during the Wednes-
day and Thursday practices when game plans were
typically practiced.
Finally, the Respondents assert that the Wednesday
deadline was justified in light of substantial adminis-
trative difficulties allegedly posed if strikers returned
at a late date in the week. These alleged difficulties in-
cluded the question of how to merge replacement
squads and strikers, as well as the logistics of practic-
ing and evaluating two squads of players at the same
time and arranging transportation to away games for
late-reporting players.
In evaluating the Respondents’ justifications, we ini-
tially note the unprecedented nature of the Wednesday
deadline and the absence of any evidence that the Re-
spondents have imposed a deadline of this type on em-
ployees outside of a strike setting. In particular, the
record shows that players who withheld their services
in pursuit of individual goals (i.e., players holding out
for a more lucrative contract) are not subject to com-
parable restraints on their status on their return. Rather,
such players are eligible to play immediately so long
as they are included in the Club’s active roster.18 If the
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
passed, and is not included on that roster, is normally paid for that
game. However, the standard ‘‘NFL Player Contract’’ tolls the
Club’s obligation to compensate a player who becomes a member
of the armed forces, retires, or ‘‘otherwise fails or refuses to perform
his services’’ only until ‘‘his return to professional football.’’
19 The Respondents’ assertion that returned holdouts are not simi-
larly situated to the 1987 strikers because only the former were ‘‘eli-
gible to be activated’’ is an exercise in circular reasoning, as the
deadline rule itself is the only reason the strikers were not similarly
eligible. We also note that employees who abandoned the strike prior
to October 15, 1987, were automatically placed on the Exempt list,
which entitled them to be paid for subsequent games whether or not
activated and allowed their Club to activate them up to 4 p.m. New
York time on the Saturday before an upcoming game.
20 In this regard, we reverse the judge’s finding that the Respond-
ents never committed themselves to paying the players even if they
were ineligible to play. This finding ignores the uncontradicted evi-
dence, set forth above, that the Respondents’ obligation to com-
pensate players is based on the terms of the NFL Players Contract,
not their eligibility status, that ineligible players on the Inactive, Re-
serve, and Exempt lists are compensated in circumstances indistin-
guishable from those presented here.
21 In this regard, there is substantial evidence that many players
practiced as a group during the strike and also continued their phys-
ical conditioning programs on an individual basis. These activities
were conducted in many cases at the direction of club officials, often
using facilities and equipment which the Clubs arranged to be made
available. Although there were no contact drills, such activities were
prohibited by the NFL Player Contracts and the strikers had every
reason to believe that the Clubs would enforce that prohibition.
Under these circumstances, and considering that the Clubs did not
administer any physical exams or conditioning tests after the strike,
we find that the Respondents have not established that the strikers
were not in sufficient physical condition to participate in an NFL
game.
22 We also note that, in 1982, the Lions and Jets did not practice
until the Thursday prior to the first poststrike games, but neverthe-
less were not subject to any automatic ineligibility rule like that im-
posed by the Respondents on strikers reporting on Thursday October
15, 1987. Moreover, the record shows that the Lions and Jets played
teams which had practiced for an additional day, without any appar-
ent ill effect.
23 The Respondents’ competitiveness concerns are also belied by
the substantial evidence that the strikers, who generally were veteran
players familiar with their Clubs’ offensive and defensive strategies,
needed less preparation time than replacement players with little or
no familiarity with these matters. In this regard, we note that the
Board in Laidlaw found that ‘‘the employer’s preference for strang-
ers over tested and competent employees is sufficient basis for infer-
ring’’ that its refusal to reinstate them was motivated by antiunion
animus. Laidlaw, above at 1369 fn. 14. To the extent that the Re-
spondents seek to justify the Wednesday deadline based on a pref-
erence for the replacement players we find that such preference is
not a legitimate or substantial justification for the rule.
Club determines that the player is not in shape to play,
he may be placed on an Exempt list, as noted above.
However, there is no automatic disqualification from
participation in NFL games, or from being paid for a
game while on the Exempt list, as was the case with
the striking employees in 1987.19 This is so whether
or not the individual is considered a ‘‘franchise play-
er.’’ Likewise, after the 1982 strike, players were im-
mediately restored to their prestrike status—including
players who did not report or practice until the Thurs-
day prior to the next weekend’s games. In this regard,
NFL Management Council Executive Director Jack
Donlan testified that the safety of returning players
was not considered either way in 1982 because the
NFL’s goal of completing the season could only be ac-
complished if the games were played.
It is undisputed that the Wednesday deadline was
only applicable to striking players. The Respondents
could and did sign nonstrikers to contracts subsequent
to the date the strikers were declared ineligible; the
nonstrikers were eligible to play in and were paid for
the October 18–19 games. Similarly, after the 1987
strike, Clubs retained a substantial number of replace-
ment players on their Inactive lists for up to two
games. Although not eligible to play to the extent that
they were not activated, these individuals were paid for
those games.
Under these circumstances, we find that the Re-
spondents have not established legitimate and substan-
tial justifications for the deadline rule.20 While it may
be true that some striking employees’ physical condi-
tioning declined during the strike, the same consider-
ations were present in the case of holdouts and of re-
placement players.21 Likewise, safety concerns did not
preclude the immediate reinstatement of the striking
players in 1982, even though they had been out for 57
days, while the 1987 strike lasted only 25 days. While
most of the strikers in 1982 reported a day earlier in
the week than was the case with most 1987 strikers,
there is no evidence in the record to suggest that the
extra day would be sufficient to overcome the far
greater loss of conditioning one would expect after the
longer 1982 strike.22
We also find that the Respondents’ asserted com-
petitiveness concerns are unpersuasive. Although the
Respondents were entitled to ensure that all clubs oper-
ated under the same rules, adopting a deadline which
discriminated against strikers was unnecessary to the
achievement of this goal. The Respondents’ argument
that Clubs needed the practice time provided by the
Wednesday deadline to prepare the strikers to play
(and, for the purpose of those practices, needed to
know who would be playing for its opponent) is con-
tradicted by their willingness to allow nonstrikers with
substantially less preparation time to play in those
games.23 Moreover, the Respondents’ claim that late-
returning strikers would have a disproportionate impact
on the game unless Clubs had an opportunity to pre-
pare their players to face them would seem to con-
tradict their prior claim that these same players were
so out of shape that it would be unsafe to play them.
Again, in the case of returning holdouts, replacement
players, and the players returning from the 1982 strike,
competitiveness concerns did not dictate the imposition
of an eligibility deadline like the Wednesday deadline
83NATIONAL FOOTBALL LEAGUE
24 Indeed, we note that the deadline rule was anomalous in other
respects as well. Thus, as the judge noted, it was applied to preclude
even specialty players such as kickers from participation in the
games, notwithstanding the lack of any evidence that the Respond-
ents’ asserted justifications applied in their case. Likewise, the rule
was applied to players on injured reserve throughout the strike even
though those players would not have been eligible in any event and
the only effect of the Wednesday deadline was to prevent them from
receiving compensation to which they would otherwise have been
entitled as injured players. The Wednesday deadline was also applied
to players whose next scheduled game was on Monday, October 19,
even though they had as much time to prepare for that game as play-
ers reporting by the Wednesday deadline had to prepare for a Sun-
day game. The Respondents admit that safety or logistical reasons
could not justify the application of the rule to these individuals.
25 In so holding, we are mindful that logistical or administrative
problems can prevent an employer from immediately reinstating eco-
nomic strikers who have not been permanently replaced. However,
we decline to find that such considerations were present here, in
light of the Respondents’ demonstrated willingness and ability to re-
instate nonstrikers and returning strikers in 1982 to active status
under circumstances presenting the same alleged difficulties.
26 228 NLRB 108 (1977), enfd. in relevant part 570 F.2d 1340
(8th Cir. 1978).
at issue here. We find that such concerns did not jus-
tify that deadline in 1987 either.
In addition, we find that the logistical and adminis-
trative burden of reinstating the strikers does not jus-
tify the rule either. In this regard, the Respondents’ ar-
guments are premised entirely on the burden of rein-
stating the entire 1100 player complement, even
though the rule on its face would apply to a single
striker who elected to return to work. The Respondents
provide no justification for the application of the rule
in these circumstances.24 We also note that the Re-
spondents maintained a substantial complement of re-
placement players well after the strikers had been fully
reinstated. Accordingly, we find that any administra-
tive burden associated with maintaining two separate
squads for the games on October 18–19 is not a legiti-
mate and substantial justification for the Wednesday
deadline.
The Respondents also provide no explanation for the
fact that the initial deadline for returning strikers, 12
noon on Friday (later modified to 3 p.m. New York
time), would have provided the Clubs with less time
to accomplish the reinstatement of returning strikers
than they actually had when the strikers reported on
October 15. To the contrary, LeBaron admitted that he
did not take logistical problems into account when he
set that deadline because he did not expect the strike
to end at that time, and the Friday deadline gave Clubs
more opportunity to obtain players, including striking
players.
We also find unpersuasive LeBaron’s testimony that,
early in the strike a Friday deadline was appropriate
because the strikers had been out for less than 2
weeks, but that ‘‘suddenly you go past that two week
cycle, and you’re into the third week, and you start
getting very concerned about their conditioning.’’
Rather, we think the true explanation for the change is
that, as LeBaron subsequently stated, the Respondents
wanted a late reporting deadline early in the strike in
order to assist them in assembling replacement teams.
As LeBaron noted, ‘‘if you can get a striking player,
then you are better off.’’ Only after the Respondents
had assembled the replacement teams was a separate,
earlier deadline viewed as desirable. Under these cir-
cumstances, we find that the Respondents’ claimed
logistical and administrative problems are not a legiti-
mate and substantial justification for the Wednesday
deadline.25
Finally, the Respondents assert that the Wednesday
deadline was privileged by the rule established in the
Board’s Drug Package Co.26 case, granting employers
5 days to reinstate unfair labor practice strikers. As the
Respondents note, the October 18–19 games fell within
5 days after the Union’s October 15 offer to return to
work. However, the Respondents had already rein-
stated the strikers on October 15, when they were wel-
comed back, requested to ‘‘immediately’’ begin prac-
ticing under their Club’s direction and paid a per diem
if they did. We also note that the Drug Package hold-
ing was limited by the Board to orders for reinstate-
ment and backpay for unfair labor practice strikers
who had not sought reinstatement prior to the hearing.
In contrast, ‘‘where a Board order issues after unfair
labor practice strikers have already made an offer to
return which has been rejected by the employer, back-
pay runs from the date of the offer to return with no
5-day period allowed.’’ Drug Package, above at 114.
Even assuming that the Drug Package 5-day grace pe-
riod for reinstatement applies to economic strikers, the
Board has refused to give the benefit of any grace pe-
riod to an employer who unduly delays or unlawfully
denies reinstatement. Aztec Bus Lines, 289 NLRB
1021, 1030 fn. 23 (1988). For all the forgoing reasons,
we find that the Respondents are not entitled to the
Drug Package grace period for reinstating the strikers
in this case.
In sum, the Respondents’ Wednesday deadline pro-
hibited employees who returned from the strike on Oc-
tober 15 from playing in the following weekend’s
games and prohibited their Club from paying them for
that game on the basis of their absence from the Club
during the strike. The only players subject to such re-
strictions were those who chose to participate in the
strike, a concerted activity protected by the Act. Play-
ers absent from their Club for other reasons were not
subject to any similar restriction on their eligibility to
participate in games; players ineligible to play for
other reasons were nevertheless still entitled to be paid.
Accordingly, for the reasons stated above, we find that
the Respondents’ maintenance and enforcement of its
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 In light of our findings above, we find it unnecessary to rely
on the adverse inferences which the judge drew from the Respond-
ents’ failure to produce certain documents or provide testimony con-
cerning the motivations of the CEC in adopting the rule. Accord-
ingly, we do not pass on the Respondents’ exceptions in this regard.
Member Oviatt is not persuaded that the Respondents unlawfully
refused to reinstate strikers under the 5-day rule. That rule, as perti-
nent here, provides an employer a 5-day grace period for the rein-
statement of strikers; and the reason for a 5-day delay is not lit-
igable. Drug Package, supra at 113–114 and fn. 28; also see New-
port News Shipbuilding, 236 NLRB 1637 (1978), National Car Rent-
al Systems, 237 NLRB 172 (1978). Aztec, supra, merely held that
the delay there of 2 weeks or more in reinstating economic strikers
was undue. There is no indication that the Board intended to reverse
or to modify Drug Packaging. As the majority does not address the
application of the 5-day rule to economic strikers, I shall not do so
either, although no compelling reason to treat economic strikers
more favorably than unfair labor practice strikers is immediately ap-
parent to me.
28 In reaching his conclusion, the judge found, inter alia, that the
discriminatory aspect of the rule, and its lack of any reasonable jus-
tification, is even more evident in the context of its application to
the injured reserve players. The judge stated that even if he had
found that the reasons the Respondents offered for the rule were ra-
tional justifications as to players able to play in the games, those
reasons would not logically apply to players on injured reserve. The
judge found that the injured reserve players who offered to return
could have been required to engage in rehabilitation at their Clubs’
facilities and to attend practices where possible. The Respondents’
asserted reasons for the rule, however, such as the need for addi-
tional time to get the players in condition to play, preventing the risk
of injury to the players, competitive balance, and preparedness for
play, could have been applicable only to players who were in a posi-
tion to play, not to players on injured reserve who were not. We
agree. See Member Oviatt’s statement of position, supra, in the pre-
ceding footnote.
The judge found that player Lew Barnes defeased his rights to in-
jured reserve benefits for the three replacement games, because he
had failed to follow his Club’s nondiscriminatory rehabilitation in-
structions. He also found that the Respondents properly withheld
player Larry Emery’s salary, because his injury was nonfootball-re-
lated (NFI), and he was therefore not entitled to compensation under
the contract. The General Counsel excepts to these findings, con-
tending that both players are entitled to payment for the last replace-
ment game, after the Union’s unconditional offer to return was
made. We find no merit to these exceptions, as these players were
not denied game checks on account of the strike, and our holding
here does not alter the judge’s findings in regard to these two play-
ers.
29 If a player fails the Club’s initial physical examination in any
year, he is not eligible for Injured Reserve. The Club may instead
use the procedures of Physically Unable to Perform (PUP) or Non-
Football Injury/Illness (NFI), whichever is applicable. Article XVIII,
secs. 2 and 3, of the 1982–1987 collective-bargaining agreement pro-
vide that any player placed on Reserve as PUP will be paid his full
contract salary while on Reserve, and that any player placed on Re-
serve as NFI will not be entitled to any compensation.
30 Par. 9 states that:
If player is injured in the performance of his services under
this contract and promptly reports such injury to the Club physi-
cian or trainer, then Player will receive such medical and hos-
pital care during the term of this contract as the Club physician
may deem necessary, and, in accordance with Club’s practice,
will continue to receive his yearly salary for so long, during the
season of injury only and for no subsequent period, as Player
is physically unable to perform the services required of him by
this contract because of such injury. If Player’s injury in the per-
formance of his services under this contract results in his death,
the unpaid balance of his yearly salary for the season of injury
will be paid to his stated beneficiary or, in the absence of a stat-
ed beneficiary, to his estate.
31 The NFL constitution and bylaws provide that Injured Reserve
players ‘‘may attend team meetings and participate in practice ses-
sions with Active List players as soon as physically able to do so.’’
Wednesday deadline rule violated Section 8(a)(1) and
(3) of the Act.27
B. Application of the Reporting Deadline Rule to
the Injured Reserve Players
The judge found that the Respondents’ application
of the Wednesday deadline rule to certain players on
Injured Reserve, who reported to their Clubs after the
October 14 deadline, violated Section 8(a)(3) and (1).
For the reasons set forth above, finding that the Re-
spondents’ Wednesday deadline rule was discrimina-
tory and without reasonable justification, we affirm the
judge’s finding that the application of the rule to the
players on injured reserve was unlawful.28
C. The Failure to Pay Injured Reserve Benefits
Besides applying the deadline rule to injured players
to deny them their pay for the last replacement game,
the Respondents also withheld the salaries of 26 play-
ers on injured reserve during part or all of the strike
period, on the ground that they were participating in
the strike. The pertinent facts, as more fully set forth
by the judge, can be summarized as follows.
‘‘Injured Reserve’’ is described by the NFL’s con-
stitution and bylaws as a category of the reserve list,
that may be used by Clubs for a player ‘‘who is in-
jured in a practice session or game of his club in any
year, after having passed the club’s physical examina-
tion in that year.’’29 A player who is injured and sub-
sequently placed on Injured Reserve by his Club is
provided protection under the standard NFL Player
Contract.
Paragraph 9 of the NFL Player Contract,30 which
governs obligations in the case of an injury to a player,
provides in part that if a player is injured in the per-
formance of his services under the contract and imme-
diately reports the injury, he will receive medical care
and, in accordance with the Club’s practice, a continu-
ation of his yearly salary for so long as he is phys-
ically unable to perform. Although the ‘‘club’s prac-
tice’’ is not defined in the standard contract, the record
reveals that this phrase refers to the fact that the clubs
have established their own treatment and rehabilitation
programs for injured players, which are supervised by
their team physicians and trainers. Thus, injured play-
ers, once they are able to do so, are generally required
to cooperate in treatment and rehabilitation, and to at-
tend club meetings and practices to the extent re-
quested.31 Once a Club places a player on Injured Re-
85NATIONAL FOOTBALL LEAGUE
32 The Clubs were, however, directed by the NFL to provide and
finance rehabilitation for the injured players at outside facilities.
33 NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
34 285 NLRB at 245.
35 Id. at 246.
36 Id.
37 Id.
38 In finding that the par. 9 benefits are accrued, we rely on the
following factors in addition to those cited by the judge: (1) an in-
Continued
serve, he is required to remain on Injured Reserve for
a minimum of 4 weeks, during which time he is not
allowed to play in any games.
Paragraph 11 of the NFL Player Contract provides
that, if the services rendered by the player are judged
by the Club to be ‘‘unsatisfactory as compared with
that of other players competing for positions on the
[c]lub’s roster,’’ the Club ordinarily may terminate the
contract and release the player. However, under para-
graph 9, if a football-related injury renders a player
unable to perform, he is entitled to remain under con-
tract, and receive medical care and his yearly salary.
Thus, paragraph 9 serves not only as a protection from
termination based on a comparison of skills, but also
as a form of medical and financial insurance for play-
ers with football-related injuries that, but for the guar-
antees of paragraph 9, could subject them to termi-
nation.
Prior to the strike, each Club had a ‘‘past practice’’
with respect to treatment programs for injured players.
Most Clubs provided rehabilitation at the Clubs’ facil-
ity, but some Clubs allowed certain players to rehabili-
tate themselves away from the facility. With the com-
mencement of the strike, however, the Respondents
adopted new rules for the injured players by directing
the Clubs to withhold the salaries of those injured
players who failed to report to the Clubs’ facilities or
who engaged in picketing.32
The Respondents refused to pay 26 injured players
who were on Injured Reserve or physically unable to
perform status for some or all of the strike, on the
grounds that these individuals were on strike. Salaries
were withheld both from injured players who were di-
rected by their Clubs to report to outside facilities for
rehabilitation and from injured players who were di-
rected by their Clubs to recuperate at home. The Re-
spondents, despite the players’ compliance with their
directives to rehabilitate themselves at outside facilities
or recuperate at home, nonetheless considered any in-
jured player a striker if he did not cross the picket line
or disavow his support for the strike. In some cases,
players were advised by their Clubs that they would
only be paid if they crossed the picket line. In yet
other cases, players were told that they could not cross
the picket line unless they resigned from the Union
and disavowed support for the strike.
The judge, applying Texaco, Inc., 285 NLRB 241
(1987), found that the paragraph 9 injury payments
were accrued benefits that were withheld on the basis
of the strike in violation of Section 8(a)(3) and (1).
The Respondents except, contending in principal that
the paragraph 9 payments are not accrued benefits and,
therefore, that they are not required to pay the benefits
to striking employees. The Respondents contend in-
stead that the payments are salary paid in consideration
for an injured reserve player’s required contractual
services, such as rehabilitation, meeting attendance,
and team practices where possible. We find no merit
to the Respondents’ exceptions, and we agree that the
Respondents have violated the Act as alleged by the
General Counsel.
In Texaco, the Board held that the question whether
an employer violates Section 8(a)(3) or (1) by refusing
to continue benefit payments to a disabled employee
on commencement of a strike, will be resolved by ap-
plication of the Supreme Court’s Great Dane test.33 As
noted in section A, above, the General Counsel has the
initial burden of proving at least some adverse effect
of the benefit denial on the employees’ exercise of
their Section 7 rights. This burden can be met by
showing that the benefit was accrued and was appar-
ently withheld on the basis of the strike.34 The burden
then shifts to the employer to come forward with proof
of a legitimate and substantial business justification for
its cessation of benefits, by proving waiver, or by dem-
onstrating reliance on a nondiscriminatory contract in-
terpretation that is reasonable and arguably correct.35 If
business justification is proved by the employer, the
Board may nevertheless find that the employer has
committed an unfair labor practice if the conduct is
demonstrated to be ‘‘inherently destructive’’ of impor-
tant employee rights or motivated by antiunion in-
tent.36
Proof of accrual is determined on a case-by-case
basis and most often turns on interpretation of the rel-
evant collective-bargaining agreement, benefit plan, or
past practice.37 Thus, whether the General Counsel has
met the prima facie burden of proving that the para-
graph 9 injury payments were due and payable and
therefore accrued on the dates the Respondents with-
held them, depends on an interpretation of the obliga-
tions as set forth in the NFL Player Contract. As dis-
cussed above, the NFL Player Contract expressly pro-
vides the conditions for accrual of benefits under para-
graph 9: a player must sustain a football-related injury,
immediately report that injury, and be physically un-
able to perform. Once these conditions are met, the
player is entitled to the benefits without doing any-
thing more. As the judge correctly noted, proof of ac-
crual without further performance is especially evident
in two instances: (1) when a player dies, and (2) when
a player is so seriously injured that he is unable to en-
gage in rehabilitation.38
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
jured player’s right to continue receiving the benefit is protected
against termination by the prohibition against terminating his con-
tract on account of the injury, in contrast to the nonprotected status
of uninjured players; (2) each of the 26 players was placed by the
Respondents on either Injured Reserve or PUP status, which pre-
cluded their participation in NFL games but did not affect their
rights under par. 9; and (3) the Respondents continued to provide
the other benefit called for in par. 9, medical or hospital care, at the
Club’s expense, during the strike.
39 Although most Clubs expect Injured Reserve players to attend
club meetings and practices to the extent they are requested and able
to do so, the judge found that the NFL Player Contract and the club
practices demonstrate that a player’s failure to engage in any func-
tion other than rehabilitation would not result in the loss of Injured
Reserve benefits.
40 Cf. Phelps Dodge Refining Corp., 299 NLRB 1111 (1990). In
Phelps Dodge, we found that the General Counsel had not estab-
lished a prima facie case that the benefits in question had accrued
when employees made request for them because the benefit plan re-
quired, inter alia, 10 years of continuous service, a requirement
which the employees did not meet. There is no analogous require-
ment here.
41 Given the basis for our holding, we find it unnecessary to ad-
dress the question whether the Respondents’ conduct was inherently
destructive of employee rights.
In addition to the case law relied on by the judge in reaching his
conclusion, we also rely on Grocers Supply Co., 294 NLRB 438
(1989).
42 The General Counsel seeks attorneys fees for Walls because he
contacted an attorney after being informed of the Cowboys’ position
on the deferred compensation issue. Even if we were to rule that the
Cowboys’ actions violated Sec. 8(a)(1), we would not award attor-
neys fees. The record, so far as it goes, does not indicate that the
Cowboys’ position, even if incorrect, was patently frivolous. We
note also that the record does not show that Walls engaged in any
litigation with the Cowboys over the issue. Betra Mfg. Co., 233
NLRB 1126 (1977). Cf. Sentry Armored Courier, 293 NLRB 115
(1990).
43 We have also deleted the expungement provision in the judge’s
recommended Order and notice. We find this provision to be unnec-
essary, as there is no evidence that Respondent Cowboys will rely
on the disputed documents as a basis for adverse action in the future.
Although, as the judge found, these accrued benefits
are subject to defeasance if the player does not cooper-
ate in his Club’s rehabilitation program,39 if and when
he is able to do so, we find that this requirement does
not render the paragraph 9 benefits nonaccrued. The
undisputed evidence shows that the disabled players
were entitled to and, in fact, were receiving benefits
under the standard contract when the strike began, and
that the Respondents suspended the benefits on com-
mencement of the strike. In agreement with the judge,
we find that the Injured Reserve payments are accrued
benefits, and that the Respondents withheld the ac-
crued benefits on the basis of the strike.40
We further agree that the Respondents failed to meet
their burden of showing a legitimate and substantial
business justification for withholding the accrued bene-
fits. The judge found, inter alia, that the Respondents
withheld the accrued benefits to the 26 injured players
because they failed to report to their Clubs’ facilities
during the strike and because they failed to declare that
they were not strikers. The record establishes that the
Respondents withheld the accrued benefits because the
Respondents considered the 26 injured players to be
strikers and therefore not entitled to the benefits. Un-
less the Injured Reserve players proved otherwise by
crossing the picket line or disavowing their support for
the strike, the Respondents viewed them as having for-
feited their accrued Injured Reserve benefits. Those
reasons, as the judge found, are not legitimate.41
D. Dallas Cowboys and New England Patriots
For the reasons set forth by the judge, we affirm his
finding that Respondent Dallas Cowboys violated Sec-
tion 8(a)(1) of the Act by threatening employee Kevin
Brooks with a forfeiture of deferred compensation be-
cause he went on strike. Brooks’ NFL Player Contract
provided for the forfeiture of certain deferred com-
pensation only in the case of his ‘‘retirement’’ during
the 1987 or 1988 seasons. We agree with the judge
that Brooks’ strike activities cannot be equated with
‘‘retirement’’ on his part. However, we find it unnec-
essary to pass on the judge’s findings that the Cow-
boys also violated Section 8(a)(1) by making similar
threats to employees Dorsett, Walls,42 and Jones, as
these findings are cumulative and do not affect the
amended remedy.43
We also affirm, for the reasons set forth by the
judge, his finding that the New England Patriots vio-
lated Section 8(a)(1) of the Act by the threat, con-
tained in Sullivan’s October 6 letter to Lin Dawson, to
trade players involved in the strike.
E. Alleged Sequestration Order Violation
The judge recommended that a hearing be directed
concerning Attorney Karch’s alleged violation of the
sequestration rule in effect during the hearing. We note
that this attorney has previously been admonished by
the Board for violating a sequestration order. See Se-
attle Seahawks, 292 NLRB 899, 908 (1989). Accord-
ingly, we have ordered that a hearing be held pursuant
to Section 102.44 of the Board’s Rules and Regula-
tions to determine whether Attorney Karch should be
disciplined for violation of the sequestration order and,
if so, what discipline should be imposed. See Rose
Printing Co., 146 NLRB 638 fn. 1 (1964). Under Sec-
tion 102.44, such discipline may include suspension or
disbarment by the Board from further practice before
it.
REMEDY
To remedy the unfair labor practices which we have
found, we shall order the Respondents to cease and de-
sist, and to take certain affirmative action necessary to
87NATIONAL FOOTBALL LEAGUE
44 Contrary to the judge, we find that employees who did not
physically report to their Club prior to October 17 are also entitled
to backpay. These individuals were aware that any attempt to report
prior to the October 18 and 19 games would be futile once the dead-
line had passed. Under these circumstances, players were not re-
quired to report in order to retain their eligibility for backpay. See
Abilities & Goodwill Co., 241 NLRB 27 (1979), enf. denied other
grounds 612 F.2d 61 (1st Cir. 1979).
effectuate the purposes of the Act. Specifically, we
shall order the Respondents to make whole all employ-
ees who were denied wages and declared ineligible for
the games played on October 18 and 19, 1987, on the
basis of the Respondents’ Wednesday eligibility rule
for strikers, with interest computed in the manner set
forth in the judge’s decision.44 The Respondents shall
also make whole those injured players denied com-
pensation on account of their participation in the strike
in the manner set forth in the judge’s decision.
ORDER
A. Respondents, National Football League Manage-
ment Council (Management Council) and the 28 Con-
stituent Member Clubs of the National Football
League, The Five Smiths, Inc., d/b/a Atlanta Falcons;
Buffalo Bills, Inc., d/b/a Buffalo Bills; Chicago Bears
Football Club, Inc., d/b/a Chicago Bears; Cincinnati
Bengals, Inc., d/b/a Cincinnati Bengals; Cleveland
Browns, Inc., d/b/a Cleveland Browns; The Dallas
Cowboys Football Club, Ltd., d/b/a Dallas Cowboys;
PDB Sports, Ltd., d/b/a Denver Broncos; The Detroit
Lions, Inc., d/b/a Detroit Lions; The Green Bay Pack-
ers, Inc., d/b/a Green Bay Packers; Houston Oilers,
Inc., d/b/a Houston Oilers; Indianapolis Colts, Inc.,
d/b/a Indianapolis Colts; Kansas City Chiefs Football
Club, Inc., d/b/a Kansas City Chiefs; The Los Angeles
Raiders, Ltd., d/b/a Los Angeles Raiders; Los Angeles
Rams Football Company, Inc., d/b/a Los Angeles
Rams; Miami Dolphins, Ltd., d/b/a Miami Dolphins;
Minnesota Vikings Football Club, Inc., d/b/a Min-
nesota Vikings; New England Patriots Football Club,
Inc., d/b/a New England Patriots; The New Orleans
Saints Limited Partnership, d/b/a New Orleans Saints;
New York Football Giants, Inc., d/b/a New York Gi-
ants; New York Jets Football Club, Inc., d/b/a New
York Jets; The Philadelphia Eagles Football Club, Inc.,
d/b/a Philadelphia Eagles; Pittsburgh Steelers Sports,
Inc., d/b/a Pittsburgh Steelers; The St. Louis Football
Cardinals, Inc., d/b/a St. Louis Cardinals, now known
as B & B Holding, Inc., d/b/a Phoenix Cardinals; The
Chargers Football Company, d/b/a San Diego Char-
gers; The San Francisco Forty-Niners, Ltd., d/b/a San
Francisco 49ers; The Seattle Professional Football
Club, d/b/a Seattle Seahawks; Tampa Bay Area Foot-
ball, d/b/a Tampa Bay Buccaneers; and Pro-Football,
Inc., d/b/a Washington Redskins, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discouraging employees from engaging in pro-
tected concerted activities, including participating in an
economic strike, by failing and refusing to reinstate
economic strikers after termination of the strike, or un-
duly delaying their reinstatement, to vacant positions.
(b) Establishing, promulgating, and enforcing rules
which discriminate against strikers by requiring them
to report for work prior to deadlines earlier than those
established for nonstrikers in order to be eligible to
participate in, or to be paid a game check for, any Na-
tional Football League game.
(c) Discriminating against their employees on In-
jured Reserve or Physically Unable to Perform status
by failing to pay them game checks during a strike be-
cause of their union and concerted and protected ac-
tivities.
(d) Discriminating against their employees on In-
jured Reserve or Physically Unable to Perform status
by imposing requirements not in existence before the
strike began and conditioning their benefit payments
on satisfaction of those strike-induced requirements.
(e) Discriminating against their employees on In-
jured Reserve or Physically Unable to Perform status
by refusing to pay them game checks unless they re-
sign from the Union or refrain from participation in
union activities.
(f) In any like or related manner interfering with, re-
straining, or coercing their employees in the exercise
of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole all employees who were denied
wages and declared ineligible for the games played on
October 18 and 19, 1987, on the basis of the discrimi-
natory reporting deadline established by the Respond-
ents in the manner set forth in the remedy section of
this decision.
(b) Make whole the following employees who were
discriminatorily denied four game checks, unless a
lesser number is set forth below, during the strike:
James Demerritt (one), Tim Richardson, Tim
Wrightman, Lew Barnes (one), Steve Fuller, Albert
Bell (three), Derrick Crawford, Brad Booth, Nick
Haden, Dupre Marshall, Martin Booker, Steve DeLine,
John Klingel, Ken Lambiotte, Mike McCloskey, Ron
Moten (three), Alan Reid, Ben Tamburello, James
Geathers, Chris Godfrey, Mike Hamby (three), Jeff
Price, Jeffrey Nowinski, Woodrow Lowe (one), Mark
Mullaney (two), and Robin Sendlein in the manner set
forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, rosters, social security payment
records, timecards, personnel records and reports, play-
er contracts, and all other records necessary to analyze
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
46 The Board has decided to sever the motion to discipline from
the unfair labor practices and all further reference to the motion to
discipline, including a decision and recommended Order by the ad-
ministration law judge should refer to this matter as: In re: Sargent
Karch.
the amounts of backpay due under the terms of this
Order.
(d) The Management Council shall post at its place
of business and at the places of business of all its con-
stituent member Clubs copies of the attached ‘‘Appen-
dix A.’’ The constituent member Clubs, except the
Dallas Cowboys and New England Patriots, shall post
at their places of business copies of the attached notice
marked ‘‘Appendix B.’’ The New England Patriots and
the Dallas Cowboys shall post copies of the attached
notices marked ‘‘Appendix C’’ and ‘‘Appendix D,’’
respectively.45 Copies of the notices, on forms pro-
vided by the Regional Director for Region 5, after
being signed by the representatives of the Management
Council and the respective Clubs, shall be posted by
them immediately on receipt and be maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Man-
agement Council and the Clubs to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(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.
B. The New England Patriots Football Club, Inc.,
d/b/a New England Patriots shall, in addition to the
foregoing, cease and desist from threatening to trade
its employees because of their union and concerted and
protected activities.
C. The Dallas Cowboys Football Club, Ltd., d/b/a
Dallas Cowboys shall, in addition to the foregoing,
cease and desist from threatening its employees be-
cause of their participation in a lawful strike with for-
feiture of any deferred compensation when the em-
ployee’s NFL Player Contract does not provide for the
forfeiture of such compensation under those cir-
cumstances.
IT IS FURTHER ORDERED that the protective order en-
tered into during the hearing prohibiting the parties
from disclosing the contents of certain testimony be
continued in full force and effect and that all exhibits
introduced into evidence under seal will continue to be
maintained under seal and that portions of the tran-
script of the hearing held during in camera sessions
will not be open to the public.
IT IS FURTHER ORDERED that the Regional Director
for Region 5 shall schedule a hearing, with notice to
all parties, before an administrative law judge to deter-
mine (1) whether Attorney Karch violated the seques-
tration order, and (2) whether he should be disciplined
for violation of the sequestration order and, if so, what
discipline should be imposed. Under Section 102.44 of
the Board’s Rules and Regulations such discipline may
include suspension or disbarment by the Board from
further practice before it.46 The judge shall hear and
receive testimony and evidence, and prepare and serve
on the parties a decision containing credibility resolu-
tions, findings of fact, conclusions of law, and rec-
ommendations to the Board. Following service of such
decision on the parties, the provisions of Section
102.46 of the Board’s Rules and Regulations shall be
applicable.
APPENDIX A
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 or-
dered us to post and abide by this notice.
WE WILL NOT discourage our employees from en-
gaging in protected, concerted activities, including par-
ticipating in an economic strike, by failing or refusing
to reinstate economic strikers after termination of the
strike, or unduly delaying their reinstatement, to vacant
positions.
WE WILL NOT establish, promulgate, and enforce
rules which discriminate against strikers by requiring
them to report for work prior to deadlines earlier than
those established for nonstrikers in order to be eligible
to participate in, or to receive a game check for, any
National Football League game.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by failing to pay them game checks during a strike be-
cause of their union and concerted and protected ac-
tivities.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by imposing requirements not in existence before the
strike began and conditioning their benefit payments
on satisfaction of those strike-induced requirements.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by refusing to pay them game checks unless they re-
sign from the Union or refrain from participation in
union activities.
89NATIONAL FOOTBALL LEAGUE
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL make whole all employees who were de-
nied wages and declared ineligible for the games
played on October 18 and 19, 1987, on the basis of
the Wednesday reporting deadline for any loss of earn-
ings or any other benefits suffered as a result of the
discrimination against them, with interest.
WE WILL make whole the following employees who
were discriminatorily denied four game checks, unless
a lesser number is set forth below, during the strike:
James Demerritt (one), Tim Richardson, Tim
Wrightman, Lew Barnes (one), Steve Fuller; Albert
Bell (three), Derrick Crawford, Brad Booth, Nick
Haden, Dupre Marshall, Martin Booker, Steve DeLine,
John Klingel, Ken Lambiotte, Mike McCloskey, Ron
Moten (three), Alan Reid, Ben Tamburello, James
Geathers, Chris Godfrey, Mike Hamby (three), Jeff
Price, Jeffrey Nowinski, Woodrow Lowe (one), Mark
Mullaney (two), and Robin Sendlein, with interest.
NATIONAL FOOTBALL LEAGUE MAN-
AGEMENT COUNCIL
APPENDIX B
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 or-
dered us to post and abide by this notice.
WE WILL NOT discourage our employees from en-
gaging in protected, concerted activities, including par-
ticipating in an economic strike, by failing or refusing
to reinstate economic strikers after termionation of the
strike, or unduly delaying their reinstatement, to vacant
positions.
WE WILL NOT establish, promulgate, and enforce
rules which discriminate against strikers by requiring
them to report for work prior to deadlines earlier than
those established for nonstrikers in order to be eligible
to participate in, or to receive a game check for, any
National Football League game.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by failing to pay them game checks during a strike be-
cause of their union and concerted and protected ac-
tivities.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by imposing requirements not in existence before the
strike began and conditioning their benefit payments
on satisfaction of those strike-induced requirements.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by refusing to pay them game checks unless they re-
sign from the Union or refrain from participation in
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL make whole all our employees who were
denied wages and declared ineligible for the games
played on October 18 and 19, 1987, on the basis of
the Wednesday reporting deadline for any loss of earn-
ings or any other benefits suffered as a result of the
discrimination against them, with interest.
WE WILL make whole the following employees who
were discriminatorily denied four game checks, unless
a lesser number is set forth below, during the strike:
James Demerritt (one), Tim Richardson, Tim
Wrightman, Lew Barnes (one), Steve Fuller; Albert
Bell (three), Derrick Crawford, Brad Booth, Nick
Haden, Dupre Marshall, Martin Booker, Steve DeLine,
John Klingel, Ken Lambiotte, Mike McCloskey, Ron
Moten (three), Alan Reid, Ben Tamburello, James
Geathers, Chris Godfrey, Mike Hamby (three), Jeff
Price, Jeffrey Nowinski, Woodrow Lowe (one), Mark
Mullaney (two), and Robin Sendlein, with interest.
(NAME OF CLUB) A CONSTITUENT MEM-
BER OF THE NATIONAL FOOTBALL
LEAGUE
APPENDIX C
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 or-
dered us to post and abide by this notice.
WE WILL NOT discourage employees from engaging
in protected concerted activities, including participating
in an economic strike, by failing or refusing to rein-
state economic strikers after termination of the strike,
or unduly delaying their reinstatement, to vacant posi-
tions.
WE WILL NOT establish, promulgate, and enforce
rules which discriminate against strikers by requiring
them to report for work prior to deadlines earlier than
those established for nonstrikers in order to be eligible
to participate in, or to receive a game check for, any
National Football League game.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by failing to pay them game checks during a strike be-
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause of their union and concerted and protected ac-
tivities.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by imposing requirements not in existence before the
strike began and conditioning their benefit payments
on satisfaction of those strike-induced requirements.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by refusing to pay them game checks unless they re-
sign from the Union or refrain from participation in
union activities.
WE WILL NOT threaten to trade our employees be-
cause of their union and concerted and protected ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL make whole all our employees who were
denied wages and declared ineligible for the games
played on October 18 and 19, 1987, on the basis of
the Wednesday reporting deadline for any loss of earn-
ings or any other benefits suffered as a result of the
discrimination against them, with interest.
WE WILL make whole the following employees who
were discriminatorily denied four game checks, unless
a lesser number is set forth below, during the strike:
James Demerritt (one), Tim Richardson, Tim
Wrightman, Lew Barnes (one), Steve Fuller; Albert
Bell (three), Derrick Crawford, Brad Booth, Nick
Haden, Dupre Marshall, Martin Booker, Steve DeLine,
John Klingel, Ken Lambiotte, Mike McCloskey, Ron
Moten (three), Alan Reid, Ben Tamburello, James
Geathers, Chris Godfrey, Mike Hamby (three), Jeff
Price, Jeffrey Nowinski, Woodrow Lowe (one), Mark
Mullaney (two), and Robin Sendlein, with interest.
NEW ENGLAND PATRIOTS FOOTBALL
CLUB, INC., D/B/A NEW ENGLAND PA-
TRIOTS
APPENDIX D
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 or-
dered us to post and abide by this notice.
WE WILL NOT discourage our employees from en-
gaging in protected, concerted activities, including par-
ticipating in an economic strike, by failing or refusing
to reinstate economic strikers after termination of the
strike, or unduly delaying their reinstatement, to vacant
positions.
WE WILL NOT establish, promulgate, and enforce
rules which discriminate against strikers by requiring
them to report for work prior to deadlines earlier than
those established for nonstrikers in order to be eligible
to participate in, and to receive a game check for, any
National Football League game.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by failing to pay them game checks during a strike be-
cause of their union and concerted and protected ac-
tivities.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by imposing requirements not in existence before the
strike began and conditioning their benefit payments
on satisfaction of those strike-induced requirements.
WE WILL NOT discriminate against our employees on
Injured Reserve or Physically Unable to Perform status
by refusing to pay them game checks unless they re-
sign from the Union or refrain from participation in
union activities.
WE WILL NOT threaten our employees because of
their participation in a lawful strike with forfeiture of
any deferred compensation when the employee’s NFL
Player Contract does not provide for forfeiture of such
compensation under those circumstances.
WE WILL NOT inform our employees that they would
have to resign from the Union in order to obtain phys-
ical therapy at our facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL make whole all our employees who were
denied wages and declared ineligible for the games
played on October 18 and 19, 1987, on the basis of
the Wednesday reporting deadline for any loss of earn-
ings or any other benefits suffered as a result of the
discrimination against them, with interest.
WE WILL make whole the following employees who
were discriminatorily denied four game checks, unless
a lesser number is set forth below, during the strike:
James Demerritt (one), Tim Richardson, Tim
Wrightman, Lew Barnes (one), Steve Fuller; Albert
Bell (three), Derrick Crawford, Brad Booth, Nick
Haden, Dupre Marshall, Martin Booker, Steve Deline,
John Klingel, Ken Lambiotte, Mike McCloskey, Ron
Moten (three), Alan Reid, Ben Tamburello, James
Geathers, Chris Godfrey, Mike Hamby (three), Jeff
Price, Jeffrey Nowinski, Woodrow Lowe (one), Mark
Mullaney (two), and Robin Sendlein, with interest.
THE DALLAS COWBOYS FOOTBALL
CLUB, LTD., D/B/A DALLAS COWBOYS
Nelson A. Levin, Esq., Eric A. Fine, Esq., Harvey A.
Holzman, Esq., and Ronald Broun, Esq., for the General
Counsel.
91NATIONAL FOOTBALL LEAGUE
1 All dates refer to the year 1987, unless otherwise stated.
2 Since the issuance of the complaint, the Cardinals moved to
Phoenix, Arizona. The team is now known as B & B Holding, Inc.,
d/b/a Phoenix Cardinals, an Arizona corporation.
3 Unless otherwise stated, all times are New York time.
4 Wherever the context dictates, ‘‘Clubs’’ may refer to only some
of the Constituent Clubs and ‘‘Club’’ may refer to only one of the
Constituent Clubs.
5 The relevant docket entries in this proceeding are as follows: The
Union filed the unfair labor practice charge in Case 5–CA–19170 on
October 15. The Union filed its charge in Case 2–CA–22449 on
September 22, and the case was transferred on March 18, 1988, by
the General Counsel to Region 5, where it was redesignated Case
5–CA–19508; and a complaint issued on March 25, 1988. The
Union filed its charge in Case 2–CA–22476 on October 5, and the
case was transferred on February 9, 1988, by the General Counsel
to Region 5, where it was redesignated Case 5–CA–19415; and a
complaint issued on March 11, 1988. These three cases were con-
solidated for hearing on March 25, 1988, and the hearing com-
menced in Washington, D.C. on May 9, 1988. During the hearing,
the complaint was amended on many occasions, particularly to add
new alleged supervisors and agents. However, a new complaint,
dated June 29, 1988, issued during the course of the hearing, and
that complaint in Cases 5–CA–19559 and 5–CA–19773 was consoli-
dated in this proceeding on August 9, 1988. The Union filed the
charge in Case 5–CA–19559 on April 1, 1988. Steve Fuller filed his
charge in Case 13–CA–27607 on March 16, 1988, and the case was
transferred on June 28, 1988, by the General Counsel to Region 5,
where it was redesignated Case 5–CA–19773. The hearing in this
proceeding continued in Washington, D.C., for more than 95 days
and closed by order dated August 15, 1989.
6 The General Counsel submitted a stipulation agreed to by all par-
ties amending the official transcript in numerous respects. The tran-
script is amended accordingly.
7 To the extent that there is testimony which conflicts with my
findings, I credit the witnesses whose testimony I rely on. In making
these credibility findings, I have fully reviewed the entire record and
carefully observed the demeanor of all the witnesses. I have also
taken into consideration the apparent interests of the witnesses; the
inherent probabilities in light of other events; corroboration or lack
of it; and consistencies or inconsistencies within the testimony of
each witness and between the testimony of each and that of other
witnesses with similar apparent interests. Testimony in contradiction
to that upon which my factual findings are based has been carefully
considered but discredited. Where necessary, however, I have set
forth the precise reasons for my credibility resolutions. See generally
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
Richard Appel, Esq., Daniel L. Nash, Esq. and F. Lal
Heneghan, Esq. (Akin, Gump, Strauss, Hauer & Feld), of
Washington, D.C., for the Respondent Management Coun-
cil.
Sargent Karch, Esq., Brian S. Harvey, Esq., and Douglas E.
Lee, Esq. (Baker & Hostetler), of Washington, D.C., for
the Respondents Constituent Member Clubs.
Robert G. Mebus, Esq. (Haynes and Boone), of Dallas,
Texas, for the Respondent Dallas Cowboys.
Timothy J. English, Esq. and Thomas Depaso, Esq., of
Washington, D.C., for the Charging Party Players Associa-
tion.
DECISION
I. PRELIMINARY STATEMENT
BENJAMIN SCHLESINGER, Administrative Law Judge. At
midnight, September 21, 1987,1 the National Football League
Players Association (Union) struck the 28 Clubs2 of the Na-
tional Football League (NFL or League). All games sched-
uled for the following weekend (including the Monday night
football game) were canceled. The next two weekends, the
games were played by replacement players and veteran play-
ers who had refused to strike or who had returned to their
teams after striking. Before the following weekend’s games,
on Thursday, October 15, a substantial number of the players
then on strike appeared at their respective team’s facilities
and offered to return. All the Clubs, relying upon a rule
adopted by the National Football League Management Coun-
cil (Management Council) which required the striking players
to return by Wednesday, 1 p.m., New York time,3 rejected
the returning strikers’ offers, because they had returned a day
too late. Thus, the games that weekend were played mostly
by replacement players, some of whom were hired later that
week, even after the strikers had offered to return.
The complaint in Case 5–CA–19170 alleges that the rule,
which permitted teams to sign players other than those on
strike as late as 4 p.m. on Saturday to play in Sunday games
and 4 p.m. on Monday to play in games scheduled for that
night, distinguished between returning strikers and replace-
ment players based solely on their participation or lack of
participation in the Union’s strike, in violation of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). The Management Council and the Constituent Clubs of
the NFL (Clubs; both collectively referred to as Respond-
ents)4 denied that they violated the Act in this respect or
committed any other of the many violations that are alleged.5
On the entire record in this proceeding,6 including my ob-
servation of the witnesses as they testified,7 and after due
consideration of the briefs submitted by all parties, I make
the following
FINDINGS OF FACT
II. JURISDICTION
The NFL, an organization with an office and principal
place of business in New York, New York, has been engaged
through its 28 teams in the operation of a professional foot-
ball league throughout the United States. The following
Clubs have been the constituent members of the NFL: The
Five Smiths, Inc., d/b/a Atlanta Falcons; Buffalo Bills, Inc.,
d/b/a Buffalo Bills; Chicago Bears Football Club, Inc., d/b/a
Chicago Bears; Cincinnati Bengals, Inc., d/b/a Cincinnati
Bengals; Cleveland Browns, Inc., d/b/a Cleveland Browns;
The Dallas Cowboys Football Club, Ltd., d/b/a Dallas Cow-
boys; PDB Sports, Ltd., d/b/a Denver Broncos; The Detroit
Lions, Inc., d/b/a Detroit Lions; The Green Bay Packers,
Inc., d/b/a Green Bay Packers; Houston Oilers, Inc., d/b/a
Houston Oilers; Indianapolis Colts, Inc., d/b/a Indianapolis
Colts; Kansas City Chiefs Football Club, Inc., d/b/a Kansas
City Chiefs; The Los Angeles Raiders, Ltd., d/b/a Los Ange-
les Raiders; Los Angeles Rams Football Company, Inc.,
d/b/a Los Angeles Rams; Miami Dolphins, Ltd., d/b/a Miami
Dolphins; Minnesota Vikings Football Club, Inc., d/b/a Min-
nesota Vikings; New England Patriots Football Club, Inc.,
d/b/a New England Patriots; The New Orleans Saints Lim-
ited Partnership, d/b/a New Orleans Saints; New York Foot-
ball Giants, Inc., d/b/a New York Giants; New York Jets
Football Club, Inc., d/b/a New York Jets; The Philadelphia
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The members of the CEC during the pertinent times herein were
Chairman Hugh Culverhouse, Buccaneers; Mike Brown, Bengals;
Joe Robbie, Dolphins; Dan Rooney, Steelers; Tex Schramm, Cow-
boys; and Chuck Sullivan, Patriots. Contrary to the contentions of
the Management Council, there is no evidence that Sullivan resigned
his membership from the CEC during the time when the issues here-
in arose. A press release issued by the Management Council on Oc-
tober 15, the day of the players’ return, stated that he was then a
member.
9 The Management Council’s members must approve the collec-
tive-bargaining agreement or any changes to it, the annual budget,
and any extraordinary or nonrecurring expenditure of more than
$50,000 for any item not included in the budget.
10 For example, Powell v. National Football League, 888 F.2d 559
(8th Cir. 1989), cert. denied 111 S.Ct. 711 (Jan. 7, 1991).
Eagles Football Club, Inc., d/b/a Philadelphia Eagles; Pitts-
burgh Steelers Sports, Inc., d/b/a Pittsburgh Steelers; The St.
Louis Football Cardinals, Inc., d/b/a St. Louis Cardinals, now
known as B & B Holding, Inc., d/b/a Phoenix Cardinals; The
Chargers Football Company, d/b/a San Diego Chargers; The
San Francisco Forty-Niners, Ltd., d/b/a San Francisco 49ers;
The Seattle Professional Football Club, d/b/a Seattle
Seahawks; Tampa Bay Area Football, d/b/a Tampa Bay Buc-
caneers; and Pro-Football, Inc., d/b/a Washington Redskins.
In the year preceding December 11, a representative period,
each of the Clubs received total revenues in excess of
$500,000 and purchased and received in interstate commerce
goods and materials in excess of $50,000 from points outside
the State in which each Club is located.
The Management Council is an unincorporated association
with its principal office in New York, New York. All the
Clubs are eligible for membership in and each has become
a member of the Management Council by agreeing to abide
by its articles of association and bylaws and has designated
a representative to act for it in the affairs of the Management
Council.
The Management Council’s purpose ‘‘is to act on a non-
profit basis as the representative of the Members of the
[Management] Council in the conduct of collective bargain-
ing and other player relations of mutual interest to all Mem-
bers.’’ As the Clubs’ bargaining representative, the Manage-
ment Council formulates and administers common labor rela-
tions policies regarding the players on behalf of the Clubs;
it negotiates the collective-bargaining agreement with the
Union; it advises and counsels the Clubs on contracts with
individual players; it handles all grievances and arbitrations;
it maintains statistical services to advise the Clubs in their
negotiations with the players; and it advises the Clubs about
various benefits, such as workmen’s compensation.
The major decision-making powers for the Management
Council are vested in the Council Executive Committee
(‘‘CEC’’), which is a group of no more than six persons,
elected by and from all of the Clubs’ representatives.8 With
very few exceptions,9 the CEC has total authority to act on
behalf of the Management Council; and all the Clubs are
bound by the CEC’s actions and may be penalized if they
fail to abide by them.
I conclude that the Management Council and each of the
Clubs are employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, as the Board has
previously found in National Football League Management
Council, 203 NLRB 958 (1973), denied in part 503 F.2d 12
(8th Cir. 1974), modified on remand 216 NLRB 423 (1975).
To the extent that new Clubs have joined the NFL since that
decision, or that Clubs have changed their names or loca-
tions, they are also employers within the meaning of the Act.
Furthermore, in the above-cited decision, at page 961, the
Board found that the 26 Clubs constituted a single employer
for bargaining purposes by virtue of their membership in the
Management Council. By the same logic, I conclude that, be-
cause all 28 Clubs are members of the Management Council,
all 28 Clubs constitute a single employer for bargaining pur-
poses.
Separate unfair labor practices have been alleged against
the Dallas Cowboys, which is a Texas limited partnership
with an office and place of business in Dallas, Texas, and
the New England Patriots, which is a corporation with an of-
fice and place of business in Foxboro, Massachusetts.
On or about January 22, 1971, the Union was certified as
the exclusive collective-bargaining representative of the ac-
tive players and certain others who were injured. I conclude,
as Respondents admit, that at all relevant and material times
the Union was a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Return from the Strike
Collective bargaining between the Management Council
and the Union cannot be considered the prime example of
successful labor relations. Since the Union was first certified
in 1971, not one series of bargaining negotiations ended
without a players’ strike. One of the issues which has
plagued the parties has been the Union’s demand, bitterly op-
posed by the Management Council, for free agency, that each
player should be free to negotiate with any team he wanted,
instead of being bound to one team by reason of provisions
that the Union deemed would inhibit other teams from ever
signing that player. In addition to this issue being repeatedly
raised in negotiations or, at least, being an underlying source
of conflict, the Union has participated in various legal ac-
tions, with the ultimate aim of permitting the players the op-
portunity to negotiate with any team of their choice.10
In December 1986 the Union distributed its negotiating
plan for a new agreement in 1987, the then present one ex-
piring on August 31, 1987. Its prime aim was free agency,
and it expressed without reservation that, if free agency was
not agreed to at the bargaining table, it would be attained
with a strike. Whether this threat, repeated frequently in the
document, shocked Jack Donlan, the executive director of the
Management Council, is probably inconsequential, but there
had been some thought in the past that the NFL would not
suffer a repetition of the 57-day strike in 1982. There were
no games played then, and thus no spectators and no sales
of hot dogs, programs, and souvenirs, and no fees for park-
ing. Of even more importance, fan interest, both spectators
and television viewers, waned for a number of years there-
after, further reducing the income of the Clubs. As early as
February 1987, at a meeting of the CEC, and March, at a
meeting of the competition committee of the NFL, there was
a general consensus that, if there were to be a strike, the
League would continue to play its full schedule in 1987 with
93NATIONAL FOOTBALL LEAGUE
those players who refused to strike and with replacements
hired to play during the strike.
The 1987 negotiations started early, but there was little
progress. Donlan and union executive director and principal
negotiator, Gene Upshaw, appeared to be good friends.
Whether they spoke the same language and understood one
another fully is quite a different matter. One dispute became
apparent: Skipping all of the many proposals made by the
Union, the one overriding issue was free agency. The Union
wanted it, at least facially, although the testimony of Richard
Berthelsen, the Union’s general counsel, suggests that the
Union would have settled for something less than full free
agency. The Management Council opposed it strenuously, al-
though it probably would have bent somewhat, but far too
little for the Union to ever accept anything that the Manage-
ment Council might have offered.
As summer approached, with training camps opening in
July, the parties continued to be stalemated. Because of their
fundamental disagreement over the free agency issue, both
Donlan and Upshaw must have realized that they could not
reach an agreement as long as neither changed his position.
So there was talk of other issues, such as pension and wel-
fare benefits, per diem meal payments, and the like, and
much posturing, simply because the parties had run out of
new ideas. While the negotiations inched along, Upshaw
made his plans for the strike, traveling extensively from
training camp to training camp throughout the country to en-
sure his members’ support for the Union’s goals. Finally,
Upshaw announced on September 8 that the Union would
strike at midnight on Monday, September 21, the time when
the Monday night, television-broadcast game should have
ended.
Earlier, the Management Council made tentative plans for
a replacement season in the event of a strike. In April it ad-
vised the Clubs to sign option agreements with players cut
during the training camps. They would comprise the core of
the replacement teams in the event that there was a strike.
In late 1986 Donlan had selected Edward LeBaron, a former
football star and executive of the Falcons and presently an
attorney, as a consultant to the Management Council for the
then upcoming negotiations. On August 25, 1987, the CEC
decided definitely to continue the League schedule, and
Donlan asked LeBaron to act as coordinator to help in run-
ning the replacement season. Following the CEC meeting,
new option agreements were sent to the Clubs, who had paid
little attention to those agreements when they were sent in
April.
With the start of the strike on September 21, LeBaron and
the Management Council staff contacted the Clubs to find
out how their hiring of new players was progressing. Many
Clubs had exercised option agreements and hired other re-
placement players. Other Clubs had not followed the Man-
agement Council’s advice. They either had expected or had
lulled themselves into the false hope that there would not be
a strike, and they were slow to hire new players and had not
hired enough players to complete their rosters. Others had
hired a sufficient number of players, but not players to fill
all the positions. LeBaron urged them to hire enough players
to field competitive teams. But some players were reporting
on Wednesday, September 23, and even more on Thursday,
and there was no time to prepare game plans for the games
that weekend, no less to try out new players and to conduct
practices. By Thursday the Management Council effected a
previously adopted position and announced that it had can-
celed the weekend’s games. There was a promise, however,
that the League would resume the following weekend, strike
or no strike.
LeBaron continued to press the Clubs to hire sufficient
personnel to play in the upcoming first replacement game.
Until that condition was satisfied, his instructions to the
Clubs were to hire players with abandon, try them out, and
experiment. The collective-bargaining agreement’s provision
limiting Clubs to a roster of 45 active players was effectively
eliminated. In these early days of the strike, a new football
season had begun. Coaches were starting training camps all
over again, trying to teach the fundamentals of professional
football to players who had not made the regular season
teams, many with little experience, even less than those who
had attended training camps in July and August, and many
who had been away from the professional game for months
or years.
On September 29, the Management Council adopted new
rules for the upcoming games. There would continue to be
no roster limits on the number of players until the day before
the first replacement games, Saturday, October 3, at 4 p.m.,
when the Clubs would be limited to 45 active players who
could play in Sunday’s and Monday’s games. However, the
Clubs could retain an unlimited number of inactive players.
By the following Tuesday, October 6, when the Clubs knew
better who could play well and who could not, the roster
limit would be reduced to 55 players, of whom 45 would be
active and 10 inactive. The Clubs could adjust their rosters
until 4 p.m. on Saturday for those playing on Sunday and
until 4 p.m. on Monday for those playing that night. Other
rules in effect during the regular season were modified to
create a larger pool from which players would be available
to the Clubs.
The CEC adopted special eligibility rules. Striking players
who wished to return to play had to report by 12 noon, local
time, on Friday in order to be eligible to play on Sunday or
Monday. The Clubs were also forbidden from signing non-
striking players after Friday noon. On Friday, October 2,
LeBaron amended these rules with the approval of the CEC
after at least one team on the East Coast complained that re-
turning strikers had to return by 12 noon, New York time,
but teams on the West Coast had 3 extra hours to hire return-
ing strikers, because of the difference between the time
zones. To resolve this complaint, the Clubs could permit the
strikers to return and could sign nonstriking players by 3
p.m., New York time.
The CEC modified the rules on October 5, and these
modified rules were in effect not only for that weekend’s
games (October 11 and 12) but also for the following week-
end’s games, which are at issue in this proceeding. First, the
time that a striking player had to return was moved forward
from Friday to Wednesday at 1 p.m. A striking player who
returned after the Wednesday deadline would not be able to
play in that weekend’s games, both Sunday and Monday.
However, the deadlines for signing nonstriking players were
moved back to Saturday at 4 p.m. for teams playing on Sun-
day and 4 p.m. on Monday for teams playing that night.
These deadlines for nonstrikers were the same deadlines that
the NFL had used for the signing of any player during the
regular seasons prior to and after the strike. Only during the
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Most of the players on 24 of the 28 teams returned between 9
a.m. and 1:30 p.m. Three teams returned between 2 and 3 p.m. Only
the Buccaneers did not report on Thursday; they reported at 8 a.m.
the next morning.
12 The Management Council contends that some returning strikers
said that they would not have played with the replacement players.
In the absence of any Club’s acceptance of the players’ offer to re-
turn to full-playing status, the strikers’ views were irrelevant and
speculative.
1987 strike was there a different, earlier deadline rule, and
that earlier deadline applied only to the strikers, and not to
nonstrikers.
When several Clubs reported that they had heard rumors
that strikers could return even past the deadline, the Manage-
ment Council issued the following memorandum to the Clubs
on October 7:
A number of clubs have called to inquire whether the
Wednesday p.m. EDT deadline for players to return to
be eligible for the Sunday and Monday games is firm.
The deadline is firm. Many clubs have expressed
concerns that if striking players are permitted to return
any closer to game time, the coaching staffs would
have insufficient time to prepare players for the games.
Also, the longer the strike progresses, the more con-
ditioning problems arise with respect to returning play-
ers. In order for all clubs to be in an equal competitive
position, the deadline must be and will be observed.
The next week, on October 13, the CEC reconsidered
whether the rule might be waived and reiterated its prior ad-
vice. So, when most of the striking players on each of the
teams returned on Thursday, October 15—the Redskins re-
turned the earliest, at about 9 a.m.11—and offered to practice
and to play in the games scheduled for Sunday and Monday,
October 18 and 19, all the Clubs relied on the Management
Council’s rule (many of them reluctantly) and rejected the
offer.12 Most returning strikers were permitted only to com-
mence practice, for which the Clubs would pay them the per
diem pay that the players earned in training camp, $50 per
day. They would not pay the players their regular game pay,
which averaged $15,000 (one-sixteenth of their salaries); nor
would the Clubs permit them to play that weekend. How-
ever, that day and the following Friday and Saturday, 15
nonstriking players were hired by the Clubs to play in that
weekend’s games. They played the same positions that cer-
tain striking employees had offered to play, but were told by
the Clubs that they could not because of the Wednesday
deadline rule.
Upshaw wrote Donlan on Thursday afternoon that the
player representatives had voted that day to send the players
back to work and asked Donlan to confirm that the players
would be allowed to resume their normal work activities as
soon as they reported and to play in the upcoming games
with full pay. The Management Council contends that this
was not an unconditional request for reinstatement and so the
strike did not end, because the players conditioned their re-
turn upon being played and paid. I find its position overly
technical, and the right to reinstatement does not depend
upon technicalities. NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 381 (1967). Upshaw’s letter was no more than an offer
to return to work, similar to an offer in any other industry.
When employees want reinstatement, it is implicit that they
wish to return to their former positions, work in those posi-
tions, and be paid. Hartmann Luggage Co., 183 NLRB 1246
(1970), enfd. in part 453 F.2d 178 (6th Cir. 1978). The
Union’s letter did not necessarily require that the coaches
give up their right to coach and to decide whether to play
the returning strikers. It did not require that each player actu-
ally appear in the game. Rather, it was the end of the strike,
as the Management Council recognized in its public relations
announcement issued that day: ‘‘We are pleased that the Na-
tional Football League’s players decided today to return to
their clubs and end the strike.’’ Donlan affirmed in a letter
he wrote to Upshaw his understanding that the Union ended
its strike on that Thursday.
1. Discussion
Section 7 of the Act provides that employees have the
right to engage in protected and concerted activities, and
Section 8(a)(1) protects from employer interference the rights
of employees to engage in protected and concerted activities.
A strike is such an activity, NLRB v. Erie Resistor Corp.,
373 U.S. 221, 233 (1963), and Section 8(a)(3) makes it un-
lawful for an employer to discriminate against employees to
discourage their membership in a labor organization, which
includes participation in concerted activities, such as a legiti-
mate strike. Ibid.
The deadline rule excluding only the striking players from
returning after 1 p.m. on Wednesday discriminates against
them only because they struck. It treats them differently from
the entire universe of nonstriking players. If a striking All-
Star quarterback wanted to return to his team on the Thurs-
day before the third replacement game, the team was barred
from letting him play or be paid. Yet, in that team’s search
for a quarterback, it could hire up to the deadline set for
nonstrikers anyone other than the almost 1100 strikers, ath-
letes (or nonathletes), the overwhelming majority of whom
were far less competent than the strikers and would not oth-
erwise have been hired to play in the NFL.
Some of those who continued their strike 1 extra day and
then offered to return to work were denied the chance to
work in positions which the Clubs, that day or within a day
or two, filled with nonstrikers. Thus, because the strikers
merely exercised a right afforded them by the Act, they were
denied the right to work in positions which they could have
filled. The harm inflicted upon them is obvious. Under the
rationale of NLRB v. Great Dane Trailers, 388 U.S. 26, 32
(1967), the Clubs’ failure to hire those returning strikers
‘‘was discrimination in its simplest form.’’ As the Court
said, at page 32:
[T]here can be no doubt that the discrimination was ca-
pable of discouraging membership in a labor organiza-
tion within the meaning of the statute. Discouraging
membership in a labor organization ‘‘includes discour-
aging participation in concerted activities . . . such as
a legitimate strike.’’ NLRB v. Erie Resistor Corp., 373
U.S. 221, 233 (1963).
As to those who offered to return but were denied employ-
ment and whose positions were not subsequently filled by
new hires, the effect of the discrimination is no less patent.
By denying them employment, the Clubs dictated when the
95NATIONAL FOOTBALL LEAGUE
13 This is not to say that the strikers became ‘‘couch potatoes’’ as
a result of the strike. Many players were addicted to exercise and
keeping their bodies fit. The strikers also held informal practices
during the strike, although they did not have the intensity that NFL
teams’ practices had, nor were they as well-motivated, nor were they
supervised by the regular coaches. In addition, although attendance
at those practices was moderately good at the beginning of the
strike, later the players’ enthusiasm waned and attendance decreased.
players could strike and when they could not. According to
the deadline rule, the players’ strike was protected so long
as they returned by 1 p.m. on Wednesday, but the strikers
forfeited their jobs for a week if they continued to engage
in their protected activities after 1 p.m. The Act does not
permit the Clubs or the Management Council to replace the
judgment of the Congress and dictate when protected and
concerted activities may be exercised and when those activi-
ties lose their protection. I conclude that the rule illegally
discriminated against the strikers.
The issue remaining is whether the Clubs’ reliance on the
rule in denying reinstatement to the strikers violated the Act.
Usually, in order to find a violation of the Act, the General
Counsel must show that a respondent was motivated by an
illegal purpose. However, proof of an illegal motive is some-
times inherent in the respondent’s actions; but even in that
instance, a respondent may avoid liability. In Great Dane,
the Supreme Court wrote, at 33-34:
[P]roof of an antiunion motivation may make unlawful
certain employer conduct which would in other cir-
cumstances be lawful. Some conduct, however, is so
‘‘inherently destructive of employee interests’’ that it
may be deemed proscribed without need for proof of an
underlying improper motive. That is, some conduct car-
ries with it ‘‘unavoidable consequences which the em-
ployer not only foresaw but which he must have in-
tended’’ and thus bears ‘‘its own indicia of intent.’’ If
the conduct in question falls within this ‘‘inherently de-
structive’’ category, the employer has the burden of ex-
plaining away, justifying or characterizing ‘‘his actions
as something different than they appear on their face,’’
and if he fails, ‘‘an unfair labor practice charge is made
out.’’ And even if the employer does come forward
with counter explanations for his conduct in this situa-
tion, the Board may nevertheless draw an inference of
improper motive from the conduct itself and exercise its
duty to strike the proper balance between the asserted
business justifications and the invasion of employee
rights in light of the Act and its policy. On the other
hand, when ‘‘the resulting harm to employee rights is
. . . comparatively slight, and a substantial and legiti-
mate business end is served, the employers’ conduct is
prima facie lawful,’’ and an affirmative showing of im-
proper motivation must be made.
From this review of our recent decisions, several
principles of controlling importance here can be dis-
tilled. First, if it can be reasonably be concluded that
the employer’s discriminatory conduct was ‘‘inherently
destructive’’ of important employee rights, no proof of
an antiunion motivation is needed and the Board can
find an unfair labor practice even if the employer intro-
duces evidence that the conduct was motivated by busi-
ness considerations. Second, if the adverse effect of the
discriminatory conduct on employee rights is ‘‘com-
paratively slight,’’ an antiunion motivation must be
proved to sustain the charge if the employer has come
forward with evidence of legitimate and substantial
business justifications for the conduct. Thus, in either
situation, once it has been proved that the employer en-
gaged in discriminatory conduct which could have ad-
versely affected employee rights to some extent, the
burden is upon the employer to establish that he was
motivated by legitimate objectives since proof of moti-
vation is most accessible to him.
The Management Council litigated extensively its many
contentions that the deadline rule was reasonable and justi-
fied. It showed that, under past practice, the Clubs never
used the deadline rule for signing entire teams at the last mo-
ment, on a Saturday or Monday. No Club would have had
time to prepare and teach a game plan within 21 hours (from
4 p.m. on Saturday to 1 p.m. on Sunday) or 5 hours (from
4 p.m. on Monday to 9 p.m. that night). Rather, teams would
sign players later than Wednesday because a veteran player
was injured during practice sessions or an injured player
failed to recover as soon as expected for the upcoming game
or, alternatively, an injured player recovered earlier than ex-
pected and thus could be activated to play at the very last
moment. In most of these instances, the players who were
signed late in the week were also adequately prepared to play
at least minimally in the game, having practiced with the
team that week and attended team meetings and film ses-
sions. So sparingly was the late-signing rule used that each
Club’s average hiring after Wednesday in all of 1986 was
only two players. (During the strike, the rule was used more
extensively. The Clubs hired 181 players on Wednesday or
later, including 82 from Thursday.)
The Management Council also elicited proof that the dead-
line rule would solve some of the special difficulties created
by the strike: Players might return from the strike, either in-
dividually or en masse. The longer a player remained on
strike, the less strength and agility he would have. He would
lose his football readiness and be more susceptible to in-
jury.13 If a player was injured after a lengthy layoff, particu-
larly a star, also known as an ‘‘impact’’ or ‘‘franchise,’’
player, the Clubs’ huge monetary investment in that player
would be lost. It would be chaotic to insist on a wholesale
substitution of strikers for replacement players, who were
more ready to play that weekend and who were more capable
of playing a competitive game than the regulars would have
played, had they been permitted to play. Furthermore, it
would be unfair for a mass of veterans to return at the last
moment, because the opposing coaches, who had been pre-
paring to face a particular group of players, would not have
adequate time to prepare their players to play a different
group of players. A rule permitting players to return by mid-
day on Wednesday, when the weekly practice begins in ear-
nest with contact drills that afternoon, might not be ideal—
some coaches and general managers said that they would
have preferred that the players return earlier—but at least the
rule permitted the players to be trained enough for the week-
end that they would have been competitive and avoided in-
jury.
I have merely touched on some of the Management Coun-
cil’s contentions, most of which are highly subjective judg-
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I reject the General Counsel’s argument that the history of bar-
gaining shows animus. There is no complaint that the Management
Council bargained in bad faith. Whatever dislike was evidenced for
the Union’s demand for free agency was merely an honest disagree-
ment over whether the proposal was justified and beneficial. Blam-
ing the Union for pursuing an issue unacceptable to management or
causing the strike is a natural component of hard bargaining, not an
unfair labor practice or evidence of animus.
15 Harter Equipment, 280 NLRB 597, 600 fn. 9 (1986).
16 Because the Management Council’s purported reasons for the
rule do not apply to injured players, as found in sec. III,C,1, below
and, I find, would not have applied to specialists, such as punters
and place kickers, who, if they had remained in good physical condi-
tion during the strike, would have been able to play with little prepa-
ration, I would not have found that the Clubs had any legitimate jus-
tification to reject their offers of reinstatement. Nor would I have
found the rule to be justified under any circumstance in permitting
any of the Clubs to hire new players to play in positions which re-
turning strikers had offered to play prior to the signing of the non-
strikers.
17 As the Management Council’s brief states:
General Counsel’s unsupported allegation that the Management
Council ‘‘claims it charged Lebaron [sic], a non labor attorney,
with total control of it [sic] labor relations during the strike’’ is
simply a misrepresentation of the record evidence.
18 I am not holding that the exercise of a privilege automatically
requires a trier of fact to become skeptical of a witness’ credibility.
In the ordinary case, I would not question that exercise. Here, how-
ever, as will be seen below, I overruled the Management Council’s
objections to the notes and found that the person who wrote the
notes did not accurately testify that he was acting as an attorney
when he wrote the notes. I cannot avoid the thought that he may
have made the same errors when he decided what he should reveal
in his testimony.
ments which are difficult to overcome. The General Counsel
tried, introducing thousands of pages of documents and
cross-examining the Management Council’s representatives
for days, in an attempt to show that they were simply wrong
and that they were motivated solely by dislike for the Union
and its free agency demands.14 The most, however, that
might be said of the General Counsel’s case is that some of
the Management Council’s judgments might be arguable and
that perhaps the Management Council could have written a
different rule that might have completely avoided the con-
troversy which caused the instant dispute. But I have the im-
pression that many of the legal arguments were better left to
the Monday morning quarterbacks, who could have argued
about the relative merits of the deadline rule in the same way
that they might argue about whether a coach on fourth and
short yardage should have gone for a first down or punted
or whether a team should keep or trade a quarterback. In
short, if I were considering solely whether the rule was le-
gitimate and substantial—and the Board has said that I need
to find that the rule was no more than nonfrivolous15—I
have little doubt that I would have found that the Manage-
ment Council had the better of this case and dismissed much
of this allegation.16
I cannot do so. What compels a contrary conclusion is
that, despite the Management Council’s thorough presen-
tation of its claim that there was justification for its rule, it
never proved that the CEC adopted the rule for these rea-
sons. It was the CEC, not LeBaron or Donlan or coaches or
even most of the Clubs’ owners, which had full authority
over games played during the strike. The CEC possessed
emergency powers which included, but were not limited to,
‘‘the opening, non-opening, closing or re-opening of any
training camp, and the cancellation of any pre-season or reg-
ular season game or games.’’ It was the CEC which canceled
the regular season games originally scheduled for September
27 and 28. It directed that the replacement players, but not
the regular players who crossed the picket line, would not be
paid for the canceled games. It established when replacement
players could be hired and the deadline rules dictating when
strikers could return from their strike.
Yet despite the CEC’s obvious involvement in the decision
to adopt the rule and, later, to enforce it, the Management
Council’s brief is almost oblivious to that fact. The premise
of the brief appears to be that LeBaron made up this rule as
merely a player personnel policy and put it into effect solely
with Donlan’s approval and based on the recommendations
of coaches and general managers, with some help from NFL
staff members. But the evidence makes clear that LeBaron
was not making the critical decisions; the CEC was, as the
Management Council’s brief almost casually and without
comment agrees (‘‘[T]he CEC approved LeBaron’s rec-
ommendation and moved the reporting deadline . . . .’’)
Donlan and LeBaron affirmed that they were in constant con-
tact with the CEC. Even if they had not and had instead tes-
tified that they were in charge of these decisions, I would
not believe them. Donlan was merely an employee of the
owners and LeBaron was his consultant, not a czar of the
Management Council’s labor relations.17 The Clubs were run
by the owners, not the Management Council’s employees.
The owners’ representatives in turn elected the CEC and
vested the CEC with the powers to act on their behalf.
In other words, what should have been of prime interest
and attention under Great Dane is the reason that the CEC
proceeded as it did. However, no member of the CEC testi-
fied about why it adopted the deadline rule; and, when the
General Counsel sought the notes or minutes of the CEC’s
meetings to disprove that it was legally motivated by justifi-
able reasons or to show that it intended to discriminate
against the players for participating in the strike, the Man-
agement Council refused to produce them, insisting that the
notes were protected by, among other things, an attorney-cli-
ent privilege. In furtherance of this claim, when the General
Counsel asked various witnesses what happened at the CEC
meetings, the Management Council’s attorney directed them
to make their own assessments of what should be protected
by the attorney-client privilege, and I felt that I was never
being told the full facts.18 In sum, the Management Council
never produced the documents to show the CEC’s motivation
and muzzled its witnesses in such a way that proof of its mo-
tivation was never candidly or credibly revealed.
Motivation is the crux of the Management Council’s de-
fense. Great Dane requires proof from the CEC of its true
motivation, and all that is arguably present here is the memo-
randum from the Management Council of October 7, quoted
above at page 9, that the rule would not be waived because
of insufficient time to prepare the returning players and their
lack of conditioning, and an interview of CEC member Joe
Robbie on ABC’s Nightline held after the players had been
refused reinstatement. What was contained in the memoran-
dum and spoken about in the interview could have been the
valid justifications that would have prompted me to dismiss
97NATIONAL FOOTBALL LEAGUE
19 He explained that he was not ready to waive the rule and gave
reasons for his personal position. He also explained that ‘‘we’’ had
made the decision that the rule was not going to be waived.
20 The Management Council’s counsel even objected, as beyond
the scope of the direct examination, to the inquiry of whether the
CEC by its actions during the last week of the strike intended to dis-
courage the players from striking in the future after the expiration
of another collective-bargaining agreement. On the other hand,
LeBaron, when asked by the Management Council’s counsel, testi-
fied that the CEC never said that penalizing the strikers was a factor
in adopting the reporting deadline and that, in recommending the
adoption of the rule, he was never motivated by any intention to pe-
nalize the striking players or undermine the Union’s authority. Simi-
larly, Donlan denied that adherence to the Wednesday deadline was
influenced by any desire to undermine the Union or to penalize the
striking players. LeBaron’s and Donlan’s motivation do not count.
The CEC adopted the rule, not them.
21 Donlan, LeBaron, and Conway generally agreed that variations
of the deadline rule had been adopted by the CEC at the first two
meetings. At the second meeting, according to LeBaron, the CEC
discussed whether the rule would be waived or strictly applied if the
strikers returned after the deadline. Donlan testified that the deadline
rule was discussed at the third meeting and was merely reinforced,
because it was working well. Because that third meeting consisted
of a lengthy discussion about the Union’s back-to-work proposal and
the preparation of the Management Council’s counterproposal and
press statement, all of which pertained to the players’ return to work,
it is probable that lengthy consideration was given to whether the
rule would be honored to the letter. The Management Council issued
a special memorandum about the deadline on October 14, stating
that the Union was telling player representatives that the Wednesday
deadline would be deferred and that the ‘‘CEC reviewed this issue
yesterday’’ and decided that the deadline was firm and would not
be ‘‘rolled’’ to a later date or time.
22 After the Board denied the Management Council’s application,
LeBaron testified that there was no discussion of the legalities of the
deadline rule at the September 29 CEC meeting. Thus, even
LeBaron, an attorney, disagreed with Conway’s characterizations of
the discussions of the CEC.
this allegation, but no member of the CEC testified that these
were the CEC’s reasons.
It was not until the next to the last day of the hearing that
a member of the CEC testified. When Tex Schramm did, he
was asked by the Management Council’s attorney only to ex-
plain certain statements, quoted below at page 27, that he
made in an October 14 television interview. Not once did
Schramm mention the reasons he and his colleagues on the
CEC expressed when the CEC adopted the rule, changed it,
or decided to enforce it.19 On cross-examination, both coun-
sel for the General Counsel and the Union attempted to pry
into those reasons; but the Management Council’s counsel
objected to the very inquiry about motivation that the Man-
agement Council was obliged to prove.20 The objections
were based upon the fact that Schramm was never asked in
his direct testimony about any meeting of the CEC, a legally
correct position. As a result, the record lacks any reliable
evidence from the members of the CEC who adopted the rule
and who discussed the possibility of waiving the rule, about
their motivation. Without that evidence, the Management
Council’s purported justifications are reduced to pretexts,
those reasons which might have been valid if only they had
been relied upon, ‘‘thus leaving intact the inference of
wrongful motive established by the General Counsel.’’ Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982).
Furthermore, when the General Counsel sought to question
the CEC’s motivation by subpoenaing the minutes of or
notes taken at the relevant meetings of the CEC, the Man-
agement Council refused to produce them. James Conway,
the Management Council’s general counsel and assistant ex-
ecutive director, testified about the CEC’s three meetings
(September 29 and October 5 and 13) at which the rule was
discussed. He stated that he made notes at those meetings
and that portions of his notes of each meeting pertained to
the rule.21 The Management Council moved to quash the
subpoena on the grounds that Conway’s notes were protected
by the attorney-client privilege and constituted attorneys’
work product and that they represented the Management
Council’s strategy for collective bargaining, relying on Pat-
rick Cudahy, Inc., 288 NLRB 968 (1988).
I denied, with a few exceptions, the Management Coun-
cil’s motion to quash. After reviewing Conway’s testimony,
given in open hearing and in camera, and reading the notes,
which were produced for my in camera inspection, I con-
cluded that Conway performed both legal and nonlegal work.
Sometimes, his functions were so intertwined that even he
had difficulty in asserting whether his notes reflected matters
about which he was consulted because he was an attorney or
matters which were generally talked about at the meetings,
as to which Conway, in light of his general knowledge of
the industry and as Donlan’s assistant, was to interject his
advice when he thought it to be appropriate.
I found that the CEC’s meetings were not called for the
purpose of consulting with Conway as an attorney, giving
him certain facts in confidence for him to give his advice.
Rather, the meetings, which were regularly scheduled for
each Monday or Tuesday, were held as part of the CEC’s
day-to-day planning and strategy during the strike, attended
by not only members of the CEC, but also Donlan and
Conway and sometimes LeBaron, Sargent Karch, an outside
counsel to the Management Council and previously its exec-
utive director (and the Clubs’ attorney in this proceeding),
and Art Modell, a team owner and chairman of the NFL’s
competition committee. Conway’s notes primarily reflected
discussions of purely business matters, which were not di-
rected to Conway, certainly not as an attorney, and in which
Conway did not directly participate, except to listen. I did
not credit Conway’s contention that much of what he wrote
were his mental impressions. Rather, his notes reflected ac-
tual discussions which he recorded not because he believed
them to be in connection with imminent, future legal pro-
ceedings or his responsibilities as a lawyer, but because he
wanted to understand the business decisions made so that he
could implement them as part of his administrative functions
as Donlan’s assistant. Finally, I found that the notes did not
concern themselves with future collective-bargaining strategy.
The Management Council applied to the Board to appeal
specially from my denial of its motion. The Board denied the
motion on February 28, 1989.22 Thereafter, the General
Counsel demanded that the Management Council produce the
notes, and it refused to do so. The General Counsel then
moved at the hearing and now renews in his brief that ad-
verse inferences be drawn from the Management Council’s
failure to produce the notes.
The adverse inference rule states that, when a party has
relevant evidence within his control which he fails to
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Although I have read them, I have made the inferences which
I would have made had I not read them, and without any consider-
ation of whether the notes actually sustain the inferences which I
have made.
produce, that failure gives rise to an inference that the evi-
dence is unfavorable to him. An inference may even be war-
ranted that the material which the party refuses to show sup-
ports exactly the opposite of what he contends at the hearing.
As Professor Wigmore has said:
The failure to bring before the tribunal some cir-
cumstance, document, or witness, when either the party
himself or his opponent claims that the facts would
thereby be elucidated, serves to indicate, as the most
natural inference, that the party fears to do so, and this
fear is some evidence that the circumstance or docu-
ment or witness, if brought, would have exposed facts
unfavorable to the party. These inferences, to be sure,
cannot fairly be made except upon certain conditions;
and they are also always open to explanation by cir-
cumstances which make some other hypothesis a more
natural one than the party’s fear of exposure. But the
propriety of such inference in general is not doubted.
[2 Wigmore, Evidence § 285 (Chadbourn rev. 1979).]
One of the adverse inferences the General Counsel re-
quests is that the Wednesday reporting rule was established
for a purpose unlawful under the Act. To make that inference
would be tantamount, argues the Management Council, to
deciding this unfair labor practice allegation solely on the
basis of its refusal to produce the notes, and that approach
was rejected in Rockingham Machine-Lunex v. NLRB, 665
F.2d 303 (8th Cir. 1981), cert. denied 457 U.S. 1107 (1982),
where the employer argued that the General Counsel’s failure
to call a crucial witness required the Board to find against
the union. The court wrote, at 305:
We do not believe that the [adverse inference] rule
reaches that far. The rule permits an adverse inference
to be drawn; it does not create a conclusive presump-
tion against the party . . . .
The Management Council also relies on 2 Wigmore, Evi-
dence § 290 at 217 (Chadbourn rev. 1979), to the effect that
the adverse inference does not affect indefinitely the merits
of the whole cause but affects specifically and only the evi-
dence in question.
One cannot seriously argue with Rockingham, which factu-
ally is utterly distinguishable from the facts in this proceed-
ing. There, the General Counsel was attempting to prove that
the employer was bargaining in bad faith. He did so by call-
ing the employer’s chief negotiator as an adverse witness.
The employer objected to the General Counsel’s failure to
call the union negotiator as a witness to the negotiations and
contended that an adverse inference should be drawn, thus
rebutting all the admissions against interest gained from the
employer’s negotiator. The court justifiably concluded that
the contention had no merit. The adverse inference did not
result in such a farfetched notion, requiring every witness on
every conceivable issue to be called. Indeed, all that the
union negotiator could arguably testify to was corroborative
of the employer’s admissions. Because those facts were al-
ready in evidence, the General Counsel was justified in not
calling an additional witness.
Rockingham, therefore, merely holds that the adverse in-
ference should be made when it makes sense to do so, and
Professor Wigmore states a conclusion that should be subject
to little argument, that the adverse inference should be ap-
plied only to the specific evidence in question. That specific
evidence here affects directly the Management Council’s as-
serted defense under Great Dane that the rule was motivated
by valid business justifications, testified to principally by
LeBaron and Donlan, and, to a slightly lesser extent, coaches
and general managers. Because LeBaron and Donlan testified
that they recommended the rule, and its changes and enforce-
ment, to the CEC, which by implication followed their ad-
vice, the notes should have supported their testimony.
The General Counsel, on the other hand, wanted the notes
to refute the conclusion that the CEC was motivated by jus-
tifiable reasons and to show, most favorably to the General
Counsel, that the rule was adopted and enforced for a dis-
criminatory reason. Under either circumstance, the notes are
relevant to this proceeding, Auto Workers v. NLRB, 459 F.2d
1329, 1342 (D.C. Cir. 1972); and the Management Council’s
refusal to comply with the General Counsel’s subpoena
makes it only natural to infer that the notes are harmful to
its claim.23 Cf. Champ Corp., 291 NLRB 803 (1988), enfd.
913 F.2d 639 (9th Cir. 1990). The Auto Workers decision is
instructive:
The reason why existence of a subpoena strengthens the
force of the inference should be obvious. If a party in-
sists on withholding evidence even in the face of a sub-
poena requiring its production, it can hardly be doubted
he has some good reason for his insistence on suppres-
sion. Human experience indicates that the most likely
reason for this insistence is that the evidence will be
unfavorable to the cause of the suppressing party. [Id.
at 1338.]
The Management Council relies on NLRB v. International
Medication Systems, 640 F.2d 1110, 1116 (9th Cir. 1981),
cert. denied 455 U.S. 1017 (1982), as authority for the prin-
ciple that I may make no adverse inference. There, the em-
ployer refused to produce subpoenaed personnel records. The
General Counsel then showed through secondary evidence
that layoffs normally occurred en masse and that one em-
ployee, whose union activities had begun just the day before,
was the only employee laid off. The second employee took
(allegedly) one extra day of a leave of absence and was im-
mediately terminated, whereas the General Counsel showed
that other employees took unexcused leaves of absence and
were not disciplined. Because of the employer’s failure to
comply with the subpoena, the administrative law judge pro-
hibited the employer from rebutting the General Counsel’s
case on these indicia of disparity, either by cross-examining
witnesses or by presenting its own witnesses.
The court held that the Board exceeded its powers, be-
cause only the district court had powers to ‘‘impose discov-
ery sanctions.’’ Whether that rule is equally applicable to the
facts in this proceeding is debatable, because the court noted
that its ruling did ‘‘not involve the ’best evidence’ rule. The
precluded evidence would not merely prove the contents of
documents but prove facts independent of the documents.’’
Id. at 1115 fn. 3. Here, I entered no preclusion order, and
99NATIONAL FOOTBALL LEAGUE
24 There is dicta which raises some conceptual problems. Although
the court agreed that the adverse inference did not depend on the
existence of a subpoena, it disagreed with Auto Workers v. NLRB
to the extent that it doubted that the willingness of a party to defy
a subpoena prior to a compliance proceeding strengthened the force
of the preexisting inference. Here, there is no preexisting inference.
The Management Council would not have had to produce the min-
utes of the CEC’s meetings to persuade me that it adopted the rule
for the reasons expressed by its witnesses. However, once a demand
was made (even without a subpoena) for those notes and they were
not produced, the reason that they were not produced becomes the
issue. The inference here results from dissatisfaction with the reasons
given by the Management Council for its failure to comply with the
subpoena. Thus, the rationale of International Medication may pro-
hibit the inference.
the evidence withheld was contained in and not independent
of the subpoenaed documents. Thus, International Medica-
tion is distinguishable.24
Even if International Medication may be read to support
the proposition that, when a subpoena issues, adverse infer-
ences may not be made, it is contrary to Board law, Lemay
Caring Center, 280 NLRB 60 fn. 2 (1986); Today’s Man,
263 NLRB 332 (1982); and to three other circuits. Hedison
Mfg. Co., 643 F.2d 32, 34 (1st Cir. 1981); NLRB v. C. H.
Sprague & Son Co., 428 F.2d 938, 942 (1st Cir. 1970);
NLRB v. American Arts Industries, 415 F.2d 1223, 1230 (5th
Cir. 1969), cert. denied 397 U.S. 990 (1970); Auto Workers
v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972). The District of
Columbia Circuit refused to follow International Medication
in Atlantic Richfield Co. v. Department of Energy, 769 F.2d
771 (D.C. Cir. 1984), a case which involved the preclusion
of affirmative defenses as a sanction for disobedience of a
departmental discovery order. The court held that the broad
congressional authority given to administrative agencies
‘‘necessarily carries with it power to authorize an agency to
take such procedural actions as may be necessary to maintain
the integrity of the agency’s adjudicatory proceedings.’’ Id.
at 794. The court stated, at 795:
[W]e have increasingly entrusted agencies with deci-
sionmaking affecting many rights and privileges hardly
less important than those at stake in discovery rulings.
It seems to us incongruous to grant an agency authority
to adjudicate—which involves vitally the power to find
the material facts—and yet deny authority to assure the
soundness of the fact-finding process. Without an ade-
quate evidentiary sanction, a party served with a dis-
covery order in the course of an administrative proceed-
ing has no incentive to comply, and ofttimes has every
incentive to refuse to comply.
Board administrative law judges have made adverse infer-
ences time and time again. Frequently, an inference is war-
ranted because a party has refused to produce a witness or
a piece of evidence in its control and uniquely available to
it to explain a particular fact or circumstance, even in the ab-
sence of a legal document requiring that witness to appear
or that document to be produced. Certainly the inference is
equally warranted when a party refuses to produce a witness
or a document pursuant to a subpoena. To accept the Man-
agement Council’s argument that there should be no infer-
ence applied would detract from the strength of a subpoena
and would provide an incentive to refuse to comply with
subpoenas; because, otherwise, administrative law judges
have no power to order litigants to produce material by way
of contempt or jail.
If adverse inferences may not be drawn, a recalcitrant re-
spondent interested in delaying a Board proceeding would
have nothing to lose by refusing to comply with any sub-
poena, perhaps some attorney’s fees in opposing the Board’s
application for compliance with the subpoena, but little else,
in exchange for gaining 3 to 6 months and perhaps delaying
and defeating, for example, an organization drive, which
often depends on timing for any degree of success. Further-
more, the delay entailed in subpoena compliance proceedings
often weakens the will of some parties. An employee termi-
nated because of union or concerted activities may merely be
worn down and may settle, instead of waiting for a legiti-
mate claim to be resolved. In addition to delay, compliance
proceedings are costly. They necessarily entail the expendi-
ture of additional manpower, which in this day of limited
agency funding is precious. The only way to avoid that ex-
penditure is to ensure that parties are aware that adverse in-
ferences may properly be drawn.
The Management Council argues, in addition to its conten-
tion that there should be no adverse inference rule, that an
adverse inference is inappropriate here for a variety of rea-
sons. First, it contends that it ‘‘voluntarily’’ produced the
notes for my in camera inspection, which demonstrates that
it is not hiding evidence but maintaining a good faith claim
of privilege that it does not wish to waive through voluntary
production of the notes. I disagree. Whether the Management
Council believed in good faith that it was entitled to a privi-
lege or, at the very least, thought that it had a sufficient
claim of privilege to support its noncompliance with the sub-
poena is hardly to the point. Ultimately, I held that its claims
of privilege were in substantial part unfounded; and the
Board denied its application to appeal specially. The Man-
agement Council has had ample notice of the fact that an ad-
verse inference could be drawn from its refusal to produce
the notes, and yet it failed to produce them.
Similarly, its contention that its production of Conway’s
notes resulted from its purely voluntary act is inaccurate.
Rather, its production resulted from a belated recognition that
I had earlier denied its motion to quash the subpoena, in part,
because I could not sustain its claim of privilege without in-
specting the notes. It changed its position and produced its
notes with the hope that, when I read them, I would agree
with its position and reverse my prior ruling. Unhappily for
it, I did not agree.
The Management Council’s additional argument that it did
not willfully refuse to comply with the subpoena because it
was attempting to protect its claim of a privilege is not only
a non sequitur, but also incorrectly states when a party may
escape responsibility for producing matters which have been
subpoenaed. If the records, for example, had been lost or de-
stroyed, it might have an arguable position. Champ Corp,
supra. It supplies no such justification, other than its attempt
to perpetuate its losing argument. Also, contrary to its con-
tention, it could have produced the documents and requested
that its production not be deemed a waiver of whatever privi-
lege might ultimately be determined by the Board or by a
court of appeals. It did not follow that course, either. What
it did was to permit its witnesses to testify (at least, up to
the point of advising them not to relate material arguably
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Generally, as Coach John Robinson of the Rams admitted, sta-
tistics are often very misleading, and I make this argument with
some caution. Various factors could easily make a returning striker
look bad. If he is a quarterback, all he needs is mediocre receivers
or offensive linemen to show off his worst side. On the other hand,
when the General Counsel argues about the virtues of some of the
replacement players, all they need is even worse players around
them to make them appear as a Gale Sayers, Bronco Nagurski, and
Superman, all in one. In sum, these arguments based on statistics
must be considered with utmost care. Here, however, LeBaron was
ready to blame the returning strikers for being in bad condition, and
there was no objective evidence to support his judgment.
protected by the attorney-client privilege) about what hap-
pened at the meetings and then refuse to produce the notes
of those meetings. If there were a valid privilege, the testi-
mony of Conway, LeBaron, and Donlan waived it.
Only one reason urged by the Management Council has
some slight appeal. The General Counsel had ample time to
move for compliance with the subpoena and, at one point in
the hearing, represented that he would do so. However, he
did not when the Management Council threatened that it
would not go forward with any part of its defense until the
subpoena issue was fully resolved, a position that, although
legally justifiable, was certain to delay the close of the Gen-
eral Counsel’s case. The Management Council also argues
that the General Counsel proceeded for compliance with sub-
poenas served upon three newspaper reporters. There is
clearly a distinction between enforcing the subpoena served
upon Conway and that application, because the reporters
were not parties to this proceeding and no adverse inference
could be made against any party as a result of the reporters’
failure to comply with the subpoenas. Furthermore, the Gen-
eral Counsel wanted those witnesses to prove facts which
were his burden to prove.
To the contrary, Conway and his notes were under the
control of the Management Council, which had the burden
of proving its motivation for promulgating and applying the
illegal rule. Although I have found that the Management
Council failed in its obligation to prove the CEC’s motiva-
tion, the General Counsel was not utterly unjustified in seek-
ing to question that motivation, especially since LeBaron,
Donlan, and Conway had testified, albeit with certain quali-
fications, to some activities in the CEC’s meetings, and there
seemed to be some suggestion that LeBaron made the dead-
line rule with Donlan’s approval and without the participa-
tion of the CEC. The notes would have either sustained their
testimony or not, and the notes would have supported a find-
ing that the CEC was motivated by certain reasons or not.
The notes were relevant, for nothing else than they reflected
upon the three witnesses’ credibility. The Management Coun-
cil’s suppression of the notes reflects adversely on their
credibility and the alleged bona fides of its justification for
the rule. Zapex Corp., 235 NLRB 1237, 1239 (1978), enfd.
621 F.2d 328 (9th Cir. 1980); cf. Champ Corp., 291 NLRB
803.
The issue, then, is how unfavorable that evidence is, i.e.,
what inferences are appropriate in these circumstances. If the
notes are unfavorable to the Management Council, then they
are contrary to the testimony of LeBaron, Donlan, and
Conway about what happened at those meetings. It is prob-
able that, instead of legitimate reasons being discussed for
the deadline rule, either there was no discussion at the meet-
ings, or, at worst, it purposely made a decision to retaliate
against the players for their strike.
Under the first inference, I find that the notes would not
support the fact that LeBaron and Donlan gave any reasons
to the CEC for its adoption of the rule. It is just as reason-
able to infer that the CEC gave no thought to the con-
sequences of the rule and passed the rule on its own initia-
tive, for no reason at all, just as it did, as shown above, with
regard to the place kickers and punters, and, as will be seen
below, with regard to the injured players. (The General
Counsel states repeatedly in his brief that the deadline rule
was intended to pressure the strikers to return by a day cer-
tain so that their names could be publicized in the media.)
If the CEC did not consider any reasons for the adoption of
its discriminatory rule, it follows that it relied on no legiti-
mate and substantial business justifications for the adoption
and enforcement of the discriminatory rule and merely re-
fused to permit the reinstatement of the striking players for
no reason.
In so finding, the necessary predicate is that Donlan and
LeBaron were not telling the truth about what they reported
to the CEC when they recommended the adoption of the var-
ious versions of the deadline rule and what the CEC did
when deciding not to waive the rule and to enforce it. If the
CEC members had credibly testified about their motivation
and if the notes had not been withheld, my resolutions of
Donlan’s and LeBaron’s credibility might have been com-
pletely different. But the withholding of relevant evidence
forces a different conclusion, bringing out various problems
that I had with their testimony that I might otherwise have
decided were not that critical.
Specifically, Donlan’s testimony was sometimes inconsist-
ent and contradictory, and his memory was not particularly
sharp. He testified as an adverse witness with much less con-
fidence and clarity than he did months later, when he was
called as the Management Council’s witness. His recall was
then infinitely greater, forcing him to correct his testimony
on a number of facts, such as the failure of the Jets to ratify
the 1982 agreement, which I thought he should have recalled
earlier. LeBaron’s memory, too, improved with age, but what
was more disturbing was his tendency to inflate some facts
to favor his defense of the deadline rule, which was not as
wholly justified as he tried to present. For example, one of
the factors that gave impetus to moving the deadline for the
strikers from Friday to Wednesday was the alleged inad-
equate performance of the strikers who returned to the Car-
dinals to play the Redskins. To credit LeBaron would result
in a finding that these players were worse than the least ex-
perienced collegians. Yet the statistics show that they did not
play badly, rather they, at least statistically, played well.25 In
addition, one of those who LeBaron claimed played badly
actually reported 10 days before the game was played, so he
had ample time to practice, and another who LeBaron used
as an example of being susceptible to injury because of re-
turning so late, actually reported on a Wednesday in compli-
ance with the later-adopted deadline rule.
LeBaron’s tendency to exaggerate to favor his client was
shown in his insistence that an impact player for the Falcons,
William Andrews, was injured in 1984 only because of his
poor physical condition because he was a holdout for a
lengthy period and was injured on the third day after he re-
turned. Actually, Andrews had reported to training camp one
101NATIONAL FOOTBALL LEAGUE
26 Although Bobby Beathard, general manager of the Redskins,
testified that he also preferred that the replacements play, he earlier
stated that, because the Redskins were playing against the Cowboys
on Monday night, he hoped that the deadline rule would not apply.
That means that he was hoping to play his regular team, not the re-
placements. Oilers Head Coach Jerry Glanville told quarterback
Warren Moon that the reason why Schramm did not want the strik-
ing players to return is that he thought that his replacement team
could beat the Redskins’ replacement team. Obviously, I am not ac-
cepting this rumor as fact, except to note that the subjective judg-
ments of whether to enforce or not enforce the deadline rule could
have been based on reasons far removed from those which might be
found to be legally justified.
27 LeBaron, in supporting Robinson, misstated the facts of this epi-
sode, which was no mere oversight but a flagrant attempt to avoid
the rule.
day late and was injured a month later. LeBaron also blamed
the failure of four Broncos to play on their poor condition
and the lack of time to properly train them. Those players,
however, refused to play because of their desire not to play
with the replacement players when their colleagues were out
on the picket line.
Finally, if the Management Council had legitimate reasons,
surely the CEC members would have testified and the Man-
agement Council would not have withheld the notes of the
meetings. As this record stands, there were no reasons
proved and the Management Council did not sustain its bur-
den of proof under Great Dane. On this basis alone, I con-
clude that it violated the Act. See Cedar Falls Health Care
Center, 276 NLRB 1300, 1303 (1985).
The second inference, which I find is equally probable, re-
sults from an examination of the circumstances of the last
week of the strike to reconstruct what happened at the CEC’s
meetings. That week was, at best, a time of frantic activity.
At the beginning of the week, all parties knew that the
Union’s strike was crumbling. Donlan knew that the strike
was over. CEC member Joe Robbie predicted on Monday the
return of the players on Tuesday and Wednesday in record
numbers. On Monday Upshaw announced his back-to-work
proposal, and no union leader announces a back-to-work pro-
posal when he is winning a strike. (Only LeBaron testified
that he did not know that the strike was coming to an end.
I do not believe him.)
It is thus likely that the CEC would meet to discuss that
proposal, as Donlan testified; and, because the Union was of-
fering to return to work but wanted to freeze all teams’ ros-
ters so that only those players on the rosters before the strike
could play, it is probable that the CEC would consider its
response to the Union’s proposal, as in fact it did, when it
agreed that the players should return and offered a two-game
guarantee to the players. It is also likely that Donlan, as the
Management Council’s principal negotiator, and LeBaron, as
coordinator of the replacement season, both of whom had
been in constant contact with the CEC, would have attended
the meeting because the CEC would have discussed the rami-
fications of the back-to-work proposal as it affected future
labor relations (thus, Donlan’s attendance) and the continuing
conduct of the replacement season (thus, LeBaron’s attend-
ance). Certainly, if Conway, who was Donlan’s assistant,
was present at and taking notes of the meeting of the govern-
ing body, particularly the meeting of October 13, it would
be unlikely that Donlan and LeBaron were absent at this crit-
ical time.
The record evidence reveals that some part of the notes of
the October 13 meeting pertains to the deadline rule.
Donlan’s recollections of the discussions of the rule were
none too clear. He testified that, if there were discussion of
the rule at the meeting, it was only to the extent that the rule
was working well and should remain in effect. Why he was
even hesitant in even conceding that the application of the
rule was discussed reflects poorly on his memory. The Man-
agement Council’s memorandum of October 14 concedes
that the CEC discussed the waiver of the rule the day before.
The withholding of the notes makes it probable that his testi-
mony was inaccurate and that the CEC deliberated in depth
about the advantages of the return of the veteran players and
the enforcement of the rule if a favorable agreement with the
Union could be made. For, despite my inclination that the
rule might have been well justified, if only the Management
Council had proved that it was motivated by the reasons it
gave at the hearing, the legitimacy of the rule was not free
from doubt or attack for a variety of reasons. For example:
(1) There is evidence in this record that indicates that the
deadline rule was not as necessary as LeBaron, Donlan, and
others testified. Perhaps the most appealing testimony in this
entire case, at least on its face, was given by three of the
NFL’s distinguished coaches (Bill Walsh, 49ers; Dan Reeves,
Broncos; and John Robinson, Rams), who stated that they
had recommended the deadline rule to LeBaron because they
did not want to jeopardize the safety of their players, who
would be in poor playing condition and susceptible to inju-
ries, and because they wanted to have well-trained athletes
available to play a competitive game that Sunday.26
Sometimes, however, witnesses’ words are belied by their
actions. Robinson apparently thought that winning was more
important than all of the reasons he gave for the deadline
rule. He disregarded the deadline rule and brought in 12 key
players after the deadline on October 14. In an attempt to
give his team the best chance of winning, while concealing
what he was doing, Robinson did not select all starters, but
picked some starters and some ‘‘capable’’ backups. Some of
those players reported as late as Friday, October 16, were
given 45-minute instructions on the new game plan (which
was essentially the same as they had been taught in weeks
of training camp), and were ready to engage in practice. But
for the fact that their Sunday opponent, the Falcons, found
out that these players had not returned prior to the deadline
and complained to the League’s office, these players would
have been on the playing field. Thus, Robinson, who testified
that football conditioning falls apart after a week without
practice, did not believe that health and safety and proper
conditioning were as important as the Management Council
desired that I believe. His actions temper my enthusiasm for
his testimony and that of the others.27 Reeves was equally
eloquent in his defense of the deadline rule, but theory, at
least once, was not substitute for expediency. He testified
that he would not start an offensive player who had missed
the Wednesday offensive practice, to support the idea that
players had to be prepared and trained well before he would
play them. However, he started fullback Bobby Micho in the
first replacement game despite the fact that Micho had re-
turned only the Friday before.
(2) LeBaron testified that the vast majority of the coaches
and general managers actually favored the deadline rule, but
that testimony was inconsistent with the reaction of many of
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
them when the players returned on October 15. A number of
coaches, Walsh included, and general managers and even
team presidents and owners greeted the players’ return with
statements that they wanted the players to play in that week-
end’s games, but they were prohibited from playing them
solely because of the Management Council’s deadline rule.
Buddy Ryan, coach of the Eagles, had ‘‘no doubt in his
mind’’ that the players would have been ready to play on
Sunday and would win on Sunday. Indeed, even Donlan was
aware of the coaches’ position, but he noted that the Man-
agement Council had to act as a buffer to enforce the will
of the owners and management. In so explaining, he said that
coaches’ jobs rely upon their win/loss records, an apparent
concession that the coaches felt more comfortable playing
their returning veterans, rather than the replacements. Thus,
I find that many Clubs would have been delighted to play
their regular players, rather than the replacements.
(3) Whether the coaches and general managers were really
as concerned with the safety of their players (and, particu-
larly, the loss of impact players) and conditioning and time
to train players, as LeBaron testified, was subjected to doubt
by the actual treatment of players who had not played foot-
ball or engaged in rigorous practices for long periods of
time. The Management Council contends in its brief that
‘‘the loss of a key player can have a significant impact on
the success of a football team’’ and, quoting George Young,
the general manager of the Giants, ‘‘the team that has the
least injuries has the best chance of winning.’’ But the Gi-
ants risked its impact player, Lawrence Taylor, who returned
the Wednesday before the final replacement games and
played that Sunday in not only all 81 defensive plays but
also, for the first time in his playing career, some offensive
plays. This record does not support the proposition that, if
Taylor returned on Thursday, there would have been any dif-
ference in his playing time. Rather, the record is replete with
evidence of other players, including replacement players, re-
porting late in the week, after long periods of being away
from professional football, and participating in many plays.
In addition, many players have been injured during the
regular season and have been unable to practice with their
teams during the week, sometimes for 4 or 5 weeks in a row.
Yet, when game day comes, there are those same injured
players, such as Dan Hampton and Jim McMahon of the
Bears, too injured to practice, but still out on the playing
field in the thick of the contest. Players who have been nom-
inated to play in the Pro Bowl, played after the Super Bowl,
often have not played football for many weeks, especially
those who have not played on better teams. Many of these
players are impact players. Bill Fralic of the Falcons, which
did not make the playoffs, had 6 weeks of no football and
relatively little exercise, before practicing one and one-half
hours from Tuesday to Saturday and playing on Sunday.
Former player Stan White testified that both the offensive
and defensive game plans could be learned in one day and
that having only one day of practice, on Saturday, without
full pads and contact, would have made no significant dif-
ference. At the end of the 57-day 1982 strike, although most
of the teams returned on Wednesday, some of their players
did not return until Thursday or Friday. Two teams did not
return from the strike until Thursday, and their players still
played on Sunday. In fact, one of the teams (the Lions)
played on Sunday and the next Thursday, so the players
played two games in the 8 days after their return to football
after a 57-day absence.
Finally, there was no evidence suggesting an unusual in-
crease of injuries after the 1982 strike which would warrant
the Clubs’ sudden concern for injuries in 1987. Rather, the
cumulative evidence indicates that coaches will play their
players when the players are needed, and they will not play
their players when they are not needed. Thus, it is in the na-
ture of football, as will be seen in the discussion about the
injured players, that players are hurt, and this record shows
that they play hurt. I conclude that the players would have
been able to play in the last weekend’s games, even if they
reported a day or two late for practice.
Indeed, the exercise physiologist who testified as an expert
on behalf of the Management Council stated that there would
have been no difference in the improvement of the players’
condition if they reported on Thursday rather than Wednes-
day and that, if the players began their contact drills on
Thursday, they would suffer less soreness on Sunday than if
they began practicing on Wednesday. Young agreed that the
strikers’ return on Thursday instead of Wednesday would not
have made a significant difference in their physical condi-
tion. Walsh testified that, if the players had reported on
Wednesday, he would not even have had them engage in full
contact practice. They would have engaged in minimal prac-
tice in shoulder pads and helmets.
(4) There is considerable doubt that the CEC actually dic-
tated that there could be no waiver of the deadline rule, as
LeBaron and Donlan testified and two memoranda state. In
the last week of the strike, negotiations for a back-to-work
agreement were being held in Kansas City and New York.
Although there was never a final agreement reached and the
negotiations began outside the formal negotiating structure of
the CEC and Donlan, Lamar Hunt, the owner of the Chiefs
and president of the American Football Conference of the
NFL, one of the League’s two conferences, wanted his play-
ers to return, and the agreement that he proposed called for
the players to ‘‘resume practice and play immediately.’’ Dis-
cussions continued on that settlement even though the dead-
line had passed. Donlan had been advised of these negotia-
tions; he spoke to representatives of the Chiefs even after the
deadline had passed; and, although he had certain reserva-
tions about the terms of the agreement, he raised no objec-
tion to the provision requiring the immediate return of the
strikers and their playing that weekend.
That the deadline was not so firm was also evident from
Tex Schramm’s television interview on October 14, in which
he said:
Under our present policy . . . the deadline was
Wednesday at 12 o’clock Dallas time and any players
or teams that came in after that time would not be eligi-
ble to play this Sunday. Therefore if the entire Union
elected to come in as a group then they would seek a
waiver of that rule. If . . . individual teams decided to
come in there would be no waiver of that rule.
Because Upshaw had earlier announced that the Union
was proposing to return to work, and Schramm must have
known, as a CEC member, that negotiations were going on,
Schramm’s statement clearly implied that there was a possi-
bility that, if the back-to-work settlement negotiations were
103NATIONAL FOOTBALL LEAGUE
28 The Management Council denied that Rozelle was its agent or
representative for any purpose. However, during the negotiations,
Upshaw made clear that he would not deal with Rozelle unless he
agreed that he was representing management. Upshaw testified that
he agreed, and Rozelle did not testify in this proceeding. By virtue
of his broad powers as Commissioner, he clearly had some access
to management; but there is nothing here except for an effort by him
to get the parties together. The fact that he may have sided with the
Management Council on certain issues did not mean that he did not
take the Union’s position in his private dealings with Donlan and
owners. His silence in the negotiations suggests that he may have
understood that, if all the other demands and counterproposals had
been agreed to, the deadline rule might not be an obstacle.
29 Jim Finks, the Saints’ general manager, so understood. When
the Saints’ players returned on October 15, he promised that if the
Union would accept the back-to-work proposal offered by the Man-
agement Council, the players ‘‘might’’ be able to play and might
even be paid without playing.
30 These findings make it unnecessary to decide whether the dead-
line rule was inherently destructive of protected rights under Great
Dane.
successful, the Management Council would waive the dead-
line rule. That contrasts with what would happen if individ-
ual teams returned. Then, there would be no waiver. Indeed,
Schramm’s testimony creates a doubt about much of the
Management Council’s testimony, for if there truly had been
a decision by the CEC in its meeting of October 13 that
there would be no waiver of the rule, Schramm would not
have held out hope that the rule would be waived.
While Schramm spoke of the possibility of a waiver,
Donlan said nothing in the New York back-to-work negotia-
tions which would deny that possibility. He countered the
Union’s proposal for the return of the strikers and a freeze
of personnel with his proposal that the Clubs would bring
back all players with a two-game salary guarantee. He never
mentioned that the deadline applied to this provision, and
Upshaw thought that there was no deadline. Upshaw was
also dealing with NFL Commissioner Pete Rozelle28 as late
as 11:30 p.m. on October 14, with the demand to put the
players back to work immediately, but Rozelle never men-
tioned that the guarantee depended on when the players re-
turned from their strike. Upshaw spoke with Donlan the fol-
lowing morning at about 10:45 a.m. The proposal to put the
players back to work was still on the table. Yet Donlan said
nothing about the deadline applying. It was only when
Donlan changed his proposal at about 12 noon on Thursday
to the three-game guarantee that the Union had asked for the
day before that he mentioned the deadline for the first time,
that the agreement would commence the following week be-
cause the Wednesday deadline had been missed.
I find that the deadline rule was not etched in stone. If the
negotiations had worked out to the CEC’s satisfaction, the
players would have been permitted to play that weekend.29
(5) There was also good reason for the owners to want the
players to return. Attendance at the replacement games was
far less than during the regular season, and, although improv-
ing, was not close to what the attendance had been in the
first 2 weeks of the season. Sales of food and beer and con-
cessions were down. Of particular importance, although the
Management Council’s witnesses tended to minimize the ad-
verse effect that the replacement games had on the League’s
television revenues, which constituted 60 percent of the
Clubs’ revenues and depended on ratings for their continued
receipts, there is no question that fewer people watched the
replacement games on television than the regular games. The
reasonable inference is that viewers were less interested in
seeing the replacements than the regular players, particularly
the stars of the NFL, and less interested in rooting for play-
ers that they were not used to watching.
Furthermore, most of the the Management Council’s wit-
nesses expressed a general dislike for the replacement games,
which were obviously not of the quality of the games played
by the strikers. No one wanted to see the game of profes-
sional football played by players who were less than the best.
As CEC member Dan Rooney said in a television interview
on October 4: ‘‘I would like to see us reach an agreement
and get everybody in and play football the way we’re sup-
posed to.’’ On October 10 John Jones, the public relations
director for the Management Council, instructed the officials
of the Clubs to answer a question from the media about the
length of the strike: ‘‘The clubs want the regular players
back as soon as possible.’’
The reason for the replacement season was to prevent the
catastrophe of the 1982 strike from recurring, to ensure that
fans would remain fans for seasons to come and to ensure
that television revenues would continue to generate increas-
ing revenues. By refusing to permit the veteran players to re-
turn, the owners were merely adding to the harm done by the
strike in the long run. In the short run, the League’s tele-
vision contract required a rebate of $40 million because of
the low ratings of the replacement games. With the threat of
losing millions of dollars of income, the Clubs must have
discussed whether it would be better to have the regular
players return for the games of October 18 and 19, just to
cut their loss of television revenues.
In sum, if many coaches and owners and general managers
wanted to permit the strikers to return, even though the dead-
line had passed; if safety and conditioning were not as sig-
nificant factors as some testified; and if the owners were to
suffer financially if the replacements continued to play an-
other game—one would think that at least some consider-
ation would be given by the CEC to the choices available
to it as to whether to insist that the deadline be complied
with or whether it should be waived. Because the notes were
not produced, no one will ever know with certainty what the
members of the CEC were thinking; but it is reasonable to
infer that the CEC adopted and enforced the rule not for le-
gitimate reasons, such as those set forth in its memorandum
of October 7. Those were pretexts and not the actual reasons,
again because, if the CEC had a legitimate motivation, the
Management Council would have had no reason to defy the
subpoena and withhold the notes which may have sustained
its otherwise compelling case. It is equally reasonable to
infer that there is something distinctly unfavorable in the
notes, enough to sustain the inference that revenge against
the Union for striking entered into the thoughts of the CEC’s
members in their either adopting the rule or refusing to per-
mit the players to return even a minute after the deadline.
Under either inference, I find that the Management Council
violated Section 8(a)(3) and (1) of the Act by adopting the
discriminatory deadline rule and that it and the Clubs vio-
lated Section 8(a)(3) and (1) by enforcing it.30
The Clubs, however, contend that they were entitled to
delay the players’ reinstatement because Drug Package Co.,
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 In light of this finding, it is unnecessary to rule on the Union’s
additional claims that (1) Drug Package should not apply because
a delay of 5 days would result in players being denied one-sixteenth
of their yearly wages, whereas in other industries, employees are de-
nied at most 1 week’s pay; and (2) the normal rule should not apply
because the return of the strikers did not cause the discharge of the
replacements, who played that first weekendand 40 of whom were
placed on an inactive roster for the next weekend and were paid for
that game, too.
228 NLRB 108 (1977), modified 510 F.2d 1340 (8th Cir.
1978), on remand 241 NLRB 330 (1979), permits 5 days to
reinstate returning strikers. The strikers, they argue, were al-
lowed to return to their regular jobs on the Monday follow-
ing the Thursday when they requested reinstatement, well
within the 5 days allowed by Board law.
The Board recognized in Drug Package that there were
‘‘administrative difficulties entailed in reinstating large num-
bers of striking employees on short notice. An employer re-
quires at least some time to effectuate the strikers’ orderly
return and, if necessary, to discharge the lawfully hired re-
placements.’’ Id. at 113. Here, there could have been ample
reasons for the Clubs’ need to delay the return of the strik-
ers. It may well have been that it was too difficult for certain
teams to discharge the replacements at the very last moment
and rehire the regular players, put them on an airplane, fly
them long distances, while simultaneously instituting a game
plan for them to use in a day or two, without even knowing
what the physical condition of those players was and whether
they would be able to play without permanent injury.
However, the Clubs did not rely on these reasons or any
other ‘‘administrative difficulties.’’ The Clubs relied almost
exclusively on the ground that the players had returned too
late under the deadline rule, which on its face discriminated
against the strikers. In numerous cases, the Board has ruled
in what is now ‘‘canned’’ language that there can be no
grace period when an employer ‘‘rejects, unduly delays, or
ignores any unconditional offer to return to work, or attaches
unlawful conditions to its offer of reinstatement . . . [be-
cause] the 5-day period serves no useful purpose and back-
pay will commence as of the unconditional offer to return to
work.’’ See, e.g., McCormick-Shires Millwork, 286 NLRB
754, 755–756 (1987); Canterbury Villa, 273 NLRB 1196
(1984). The 5-day period serves no useful purpose when the
Clubs, rather than pleading their administrative difficulties,
merely rely on a discriminatory rule which violates the Act;
and Drug Package does not apply.31
The General Counsel alleges that the Clubs and the Man-
agement Council constitute a single employer for the purpose
of liability and all are equally responsible, jointly and sever-
ally, to remedy the violations of the Act. NLRB v. Browning-
Ferris Industries, 691 F. 2d 1117, 1122–1123 (3d Cir. 1982),
contains a classic analysis of the single employer status and
how that status differs from a joint employer. The court ex-
plained, at 1122: ‘‘A ‘single employer’ relationship exists
where two nominally separate entities are actually part of a
single integrated enterprise so that, for all purposes, there is
in fact only a single employer.’’ The Board considers four
factors: (1) functional integration of operations; (2) central-
ized control of labor relations; (3) common management; and
(4) common ownership. The Clubs are not owned by the
same owners, nor are they managed by the same managers.
Through the Management Council, they probably have cen-
tralized control of labor relations, certainly in the replace-
ment season. To form a product, each Club needs the other
Clubs to compete with, so the test for integration of oper-
ations is undoubtedly met. But at best only two of the four
factors apply, and that misses the Board test by half.
The relationship among the Clubs is far closer to that of
a joint employer, which Browning-Ferris notes, at 1122, does
not depend on the existence of a single integrated enterprise,
but rather assumes that there is more than one entity and that
the entities ‘‘share or co-determine those matters governing
the essential terms and conditions of employment.’’ Id. at
1123. The Management Council came very close to becom-
ing a joint employer by demanding, during the 1987 negotia-
tions, that it assume the responsibility for negotiating with
the players all compensation, over and above what the col-
lective-bargaining agreement would require under its pro-
posal. But the test of joint employer status is not wholly sat-
isfactory when applied to the NFL, because 49ers’ Quarter-
back Joe Montana’s salary is not determined by the Dolphins
and Dolphins’ Quarterback Dan Marino can hardly be con-
sidered to be playing for the 49ers.
Recognizing that the standard tests for determining ‘‘single
employer’’ status are not completely applicable and that the
status of the Clubs is at best a hybrid, the General Counsel
contends that the Management Council and the Clubs operate
as a joint venture in running football games, relying on
Great Lakes Dredge Co., 240 NLRB 197 (1979). The Board
explained, at 198, that the rules governing partnerships are,
for the most part, applied to joint ventures. Thus, each part-
ner acts individually and as agent for the other members, and
each joint venturer is the agent and partner of the other and
liable as a principal for any act within the general scope of
the enterprise.
There is no question that much of what the Clubs do is
a joint business undertaking to produce an entertainment
product, which could hardly be effective without their joint
participation and consent as to the most basic items, such as
scheduling games and permitting their games to be televised.
Most courts have recognized that sports leagues share many
of the characteristics of a joint venture. For example, see
Smith v. Pro Football, 593 F.2d 1173, 1178–1179 and fn. 19
(D.C. Cir. 1978, as amended Jan. 31, 1979); Los Angeles
Memorial Coliseum v. NFL., 468 F.Supp. 154, 162–164
(C.D.Cal.1979) (wherein the NFL asserted that it was a joint
venture, but the court did not rule on the issue). By defini-
tion, however, a ‘‘joint venture’’ is a joint business undertak-
ing by two of more parties who agree to share the risks as
well as the profits of the venture. Pinnacle Port Community
Assn. v. Orenstein, 872 F.2d 1536, 1539 (11th Cir. 1989);
Davidson v. Enstar Corp., 848 F.2d 574 (5th Cir. 1988), on
rehearing 860 F.2d 167 (1988), rehearing denied 864 F.2d
791 (1988). The Clubs, to the contrary, normally share reve-
nues only, although the Management Council’s bylaws pro-
vide that any Club that ‘‘suffers inordinate loss or damage
by reason of a strike or by reason of an action of the CEC
on any ‘emergency matter’ may be reimbursed by’’ the other
Clubs.
No matter whether the Clubs are classified as a single or
a joint employer, the record shows that the Clubs, by means
of the Management Council, acted together in establishing
the rules which led to the alleged unfair labor practices here-
in. The Clubs gave the CEC of the Management Council the
105NATIONAL FOOTBALL LEAGUE
32 The Union understood this. On October 9 it filed an unfair labor
practice charge against the Vikings for allegedly offering to pay
strikers even if they returned after the deadline.
authority to act in the event of an ‘‘emergency,’’ and the
Clubs’ representatives elected the members of the CEC who
adopted the rules which gave rise to the major unfair labor
practices alleged in this proceeding. The CEC effectively
controlled the operation of the replacement season during the
term of the strike. The CEC established the playing rules and
all other operational aspects under which the League oper-
ated and virtually assumed the functions of an employer by
actually establishing the terms and conditions of employment
of the replacement players.
The Management Council prepared the option agreements
whereby the players in training camp would agree to play
during the replacement season. It advised the Clubs about the
player who were available for hire. It established when the
replacements could report and directed that they take phys-
ical examinations. It promulgated when the replacement play-
ers would be paid and directed that they would not be paid
for canceled games. It sent memoranda to all officials of the
Clubs telling them how to answer specific questions from the
media. The CEC’s deadline rule, which was enforced by the
Clubs, affected the right of the strikers to regain their jobs.
In National Football League Management Council, the
Board had no difficulty directing all the Clubs and the Man-
agement Council, jointly and severally, to reimburse certain
players who had been fined for violating a rule adopted by
the Management Council. To the same effect, by adopting,
through the CEC, the relevant rules which were binding on
the Clubs and gave rise to the unfair labor practices alleged
herein, the Management Council and the Clubs were engaged
in a joint venture to operate, at the very least, the replace-
ment season. They are jointly and severally liable for any
violations herein, other than those found against the Patriots
and the Cowboys. Alternatively, the Management Council is
similar to a multiemployer association which bargains for its
members. Although the association is usually considered a
separate entity, it has been held jointly and severally liable
when it acts with its members in violating the Act. Res-
taurant Assn. of the State of Washington, 190 NLRB 133,
140 (1971); Pacific American Shipowners Assn., 98 NLRB
582, 600 (1952).
The joint and several liability incurred as a result of my
conclusion is not such a hardship. Rather, it is in part the
natural consequence of the fact that the Management Council
is an unincorporated association. As such, its individual
members are responsible for all liabilities incurred in the
business for which it was organized, especially because the
members voted for the CEC and, in the bylaws, the members
authorized the CEC to act on behalf of the organization. 6
Am.Jur.2d, Associations and Clubs § 46. Besides, the Man-
agement Council’s articles of association provide that all
costs and expenses of maintaining the Management Council
shall be divided equally among its members. Therefore, even
without my conclusion, a finding of joint and several liability
against the Management Council would result in the Clubs
being severally responsible for their equal share of the Man-
agement Council’s liability.
The complaint alleges an alternate theory of liability, that
even if the Clubs refused to play the returning strikers, they
should have paid them. Contrary to the General Counsel’s
contentions, the Clubs never committed themselves to paying
the players, even if they were ineligible to play.32 No striker
who returned after the deadline was permitted to play, and
none of those players were paid. Nor do I find any credible
evidence which proves the contrary, the necessary result of
which is that players returning 5 minutes before kickoff
would, under the General Counsel’s theory, be entitled to
pay, even though they were not allowed to play and did not
even have the time to lace their shoes. If the entire theory
of the deadline rule, often repeated in the General Counsel’s
and the Union’s briefs, was to coerce players across the pick-
et line and to publicize their return, it is impossible to con-
ceive why the Management Council would wish to reward
those players who did not make the deadline with the pay-
ment of their salaries, which averaged $15,000.
Accordingly, I will not credit the statements attributed to
Conway and Jones in two newspaper articles. The cross-ex-
amination of the two reporters who testified that they made
such statements was so limited by a court order that I have
an insufficient record to rule on their credibility. Even if I
found that Conway and Jones made those statements, they
would have reflected no more than an understanding that
through negotiations, the players might still be paid even if
they did not play. Some team owners appeared willing to do
so. However, the Management Council never committed that
it would do so; and the CEC, which ran the replacement sea-
son, never adopted that policy.
The General Counsel contends that some returning strikers
were paid despite the fact that they were not eligible to play.
Some were placed on a ‘‘Commissioner exempt’’ status,
which permitted the Clubs 2 weeks to determine whether a
player who had missed some time was physically fit to play.
These players practiced with the teams and could have been
activated to play by Saturday at 4 p.m. However, these play-
ers had reported prior to the deadline, whereas the players
for whom the General Counsel seeks relief were under no
circumstances eligible to play. Complaint is also made
against the revision of the roster rules which permitted the
Clubs to retain 40 players on their inactive list for the games
of October 25 and 26, and 5 thereafter. These players were
paid despite the fact that they did not play. The reason for
continuing them on such a list was, according to Donlan, the
fear that the veterans would once again strike. Although I
have some doubts about this reason, because there was no
evidence of even a hint that the veterans were going to re-
sume their strike, I know of no prohibition against the reten-
tion of the replacement players. Furthermore, I know of no
reason why the Clubs would want to retain the replacements
and incur the added cost, unless they discovered in the re-
placement games that they had underrated certain players
who were cut and now wanted to keep and develop them.
The Board announced in General Electric Co., 80 NLRB
510, 511 (1948): ‘‘It is axiomatic that the Respondent is not
required under the Act to finance an economic strike against
it by remunerating the strikers for work not performed.’’
There, the employer paid certain of its employees who were
in different bargaining units and who were unable to work
because of a strike. Because those employees made their
services available during the strike and remained ready to
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 There is no obligation to check off dues after the expiration of
the collective-bargaining agreement. Bethlehem Steel Co., 136 NLRB
1500 (1962), enfd. in pertinent part sub nom. Shipbuilders v. NLRB,
320 F.2d 615 (3d Cir. 1963).
work, they were stand-by employees and were entitled to be
paid as a matter of law. Id. at 512. Here, the players on the
inactive list were ready to play, if activated. Indeed, the ex-
pired collective-bargaining agreement provided that the Clubs
may determine to have an inactive list of any number of
players per Club and that inactive list players will receive the
same benefits and protections as active list players. The
Clubs’ payment of wages to employees who were not active
players was in accord with the practice permitted under the
expired agreement and created no obligation to pay the strik-
ing players.
The final group of employees about whom the General
Counsel complains consists of 15 players on injured reserve
status, which will be discussed in detail in section C below.
Suffice it to say at this point that the reason why there is
so much discussion to come is that the complaint alleges that
the Clubs should have continued to pay numerous injured
players who had been paid before the strike and were too in-
jured to play during the strike. Here, the General Counsel is
attempting to establish liability for almost 1100 strikers (at
an average of $15,000 per game, totaling almost $16.5 mil-
lion) on the ground that the Clubs paid 15 injured players,
as they legally should have, when in the same legal proceed-
ing the General Counsel complains that the Clubs did not
pay other injured reserve players. In other words, if the
Clubs had not paid the first group of injured reserve players,
the General Counsel would have complained that the Clubs
committed a violation of the Act. However, because they
paid them, the Clubs should have also paid all the strikers.
I find no logic in its position and will recommend dismissal
of this allegation.
B. Cessation of Checkoff of Dues
The last collective-bargaining agreement provided, as
noted above, that a team could have no more than 45 active
players on its roster during the regular season. During train-
ing camp, however, each Club tries out as many as 100 play-
ers, including veterans, in order to select those whom it
deems to be the best for the team. Traditionally, there have
been a series of dates scheduled for the teams to cut down
their rosters. The agreement, which expired by its terms on
August 31, gave to the Clubs the right to determine the dates
for the preseason cutdowns. The complaint alleges that the
Management Council deliberately delayed that first cutdown
date until September 1, the day after the agreement expired,
in order to prevent the Union from collecting its first install-
ment of dues under the checkoff provision, which states:
Commencing with the execution of this Agreement,
each club will chaek-off [sic] the initiation fee and an-
nual dues or service charge, as the case may be, in
equal weekly or biweekly installments from each pre-
season and regular season pay check, beginning with
the first pay check after the date of the first pre-season
squad cutdown, for each player for whom a current
check-off authorization . . . has been provided to the
club. The club will forward the check-off monies to the
NFLPA within seven days of the check-off.
The General Counsel correctly notes that since 1976, there
were always three cutdowns, the first taking place after the
second preseason game. (Donlan testified that the only other
year in which there were less than three cutdowns was in
1974.) Following this practice, the first cutdown in 1987
would have occurred on August 25. The Clubs contend,
however, that they were anticipating that the Union would
strike and that they would continue the season with replace-
ment players. In order to train sufficient numbers of replace-
ments who would be able to step in immediately to play if
a strike should occur, the Clubs needed additional time to
train them in preseason camp. The NFL competition commit-
tee, therefore, recommended in March that there should be
only two squad cutdowns. The cutdown dates are tradition-
ally measured backwards from the first regular season game,
which was scheduled to be played on September 13, unusu-
ally late because Labor Day fell on September 7, and the
League for years started its schedule the weekend after that
holiday. The cutdown dates were the Monday before the first
regular game, and then the preceding Tuesdays. The second
Tuesday before the opening game was September 1, which
happened to be the day after the agreement expired. There
was no discrimination here, argue the Clubs, because there
was no prohibition against having only two cutdown dates;
and, otherwise, the Clubs’ practice was the same as it always
had been and was legal.33
The General Counsel sees something much more sinister
in the Clubs’ actions. During the negotiations, on August 5,
Berthelsen argued that the September 1 expiration date for
the agreement was not applicable. Instead, the agreement did
not expire until September 15 because Donlan never gave
sufficient notice to terminate the agreement under the Act
and the contract. Donlan replied that he did not care what
Berthelsen’s position was, ‘‘there is no way we’re going to
check off dues in 1987.’’ When Berthelsen asked why,
Donlan replied, ‘‘[B]ecause the clubs aren’t going to pay the
union to fight them.’’ Upshaw’s recollection of Donlan’s re-
sponse was somewhat the same: ‘‘I don’t care what your
legal position is on this, there will not be any dues check-
off for the 1987 season.’’ The following day Donlan reported
to the Clubs about what had happened the day before and,
specifically, about the Union’s request for dues checkoff. He
said that dues checkoff was very important for the Union and
that the Union would be seeking relief from anyone who
would listen.
Donlan, disputing the testimony about what he said on Au-
gust 5, presented a slightly different narration, after an origi-
nal rather bumpy statement of what happened, including suf-
ficient indications that his memory of the events was not par-
ticularly good. I do not credit his testimony, and I note that
he could not remember enough that he could specifically
deny making the statement. Dennis Curran, a staff attorney
for the Management Council, testified that he was present
throughout the conversation. He surely would have corrobo-
rated the testimony of Donlan if he agreed with it, or would
have taken issue with what Upshaw and Berthelsen had testi-
fied to, if his recollection was different.
I, therefore, credit the union representatives; but in doing
so, I find that the disagreement between Berthelsen and
Donlan was not over the propriety of delaying the cutdown
107NATIONAL FOOTBALL LEAGUE
34 The collective-bargaining agreement provided that all players
sign a standard player contract.
35 One player was classified as physically unable to play (‘‘PUP’’),
which in his case did not alter the Club’s obligation to pay him his
regular game pay.
date until after the agreement expired. Their disagreement
encompassed whether the agreement expired on August 31,
which allowed the Management Council not to check off
dues because the first cutoff date was on September 1, as
Donlan insisted, or whether the agreement had been extended
by Donlan’s neglect, as the Union contended, so that the
agreement would still be in effect when the first cutoff date
arrived. Donlan’s position was that, if there were no agree-
ment—and there was a strike—there would be no checkoff
of dues, which could only be used by the Union to support
the strike.
The question then is what motivated him to take this posi-
tion and not turn over to the Union the first installment of
dues. In making the following findings, I specifically credit
the testimony of Donlan and Bill Walsh, coach of the 49ers
and member of the competition committee, and note that
there had already been a preliminary determination that at
least plans should be made in anticipation of a strike by the
Union. Thus, in April the Management Council had sent out
to the Clubs a proposed option agreement for those who
were cut from the Clubs in training camp to agree to return
to play replacement games in the event of a strike. The
League had also determined that there would be only two
cutdowns. That had been recommended by the NFL’s com-
petition committee in March and adopted by the NFL on
May 20. It had been recommended not because it would de-
prive the Union of its dues payment but because the competi-
tion committee believed that it would be better for the Clubs
to have more time to evaluate all the players in training
camp and to prepare those who were ultimately cut, to play
in the replacement games should there be a strike. Because
many Clubs wanted this additional time to prepare the pro-
spective replacement players, there was much support for
only one cutdown date, the week before the opening of the
season, but they finally settled for two cutdown dates. The
preparation of replacement players is a nondiscriminatory
reason.
When Donlan announced on August 5 that there would be
no dues checkoff, Upshaw and Berthelsen tried to persuade
him that the agreement survived its September 1 expiration
date and was extended because of his ineptitude. His reply
was his feeling that he was not going to extend the terms
of the agreement past its expressed expiration date merely
because Berthelsen was making a technical argument that the
agreement had been extended for 15 days. Donlan was ex-
pressing why he would not accede to an extension of the
agreement. He was not stating why the Management Council
determined when the cutdowns should take place. I conclude
that this allegation should be dismissed.
C. The Injured Reserve Claims
The NFL player contract34 provides protection to players
who are injured during the season, as follows:
If Player is injured in the performance of his services
under this contract and promptly reports such injury to
the Club physician or trainer, then Player will receive
such medical and hospital care during the term of this
contract as the Club physician may deem necessary,
and, in accordance with Club’s practice, will continue
to receive his yearly salary for so long, during the sea-
son of injury only and for no subsequent period, as
Player is physically unable to perform the service re-
quired of him by this contract because of such injury.
If Player’s injury in the performance of his services
under this contract results in his death, the unpaid bal-
ance of his yearly salary for the season of injury will
be paid to his stated beneficiary or, in the absence of
a stated beneficiary, to his estate.
Of the many players who reported to the Clubs’ facilities
on October 15, some were players who had been so seriously
injured prior to the strike that their Clubs had placed them
on injured reserve status, which meant that the Clubs guaran-
teed them their pay for the remainder of the season or as
long as they remained injured and that the players were not
permitted to play for a minimum of 4 weeks and until their
Clubs designated them as active players.35 When the Union
terminated its strike, these players were still on injured re-
serve.
1. Reinstatement: a reprise
I have already concluded that those players who reported
on October 15 were entitled to be paid for that weekend’s
games because the rule discriminated against the strikers and
the Management Council failed to prove that it had any rea-
sonable justification for the rule. That conclusion applies
with even more force to the injured reserve players; for even
if I had reached the issue of, and agreed with, the Clubs’ al-
leged reasons for their refusal to permit their healthy players
to return to work, none of those reasons applied to the in-
jured players.
The Management Council’s reasons for the rule—safety of
the players, who needed time to return to football-playing
condition, and competitive balance and preparedness for
play—were aimed at players who were ready to compete.
They were not intended to apply to those who could not
play; and the Management Council’s witnesses were uni-
formly taken aback when asked why the Clubs did not per-
mit the injured reserve players to return even after the dead-
line, because they would not have played in the games any-
way. Rather, the demeanor of these witnesses persuades me
that no thought could have been given to the injured reserve
players when preparing the deadline rules.
When the injured players returned to work that Thursday,
the most that the Clubs could have required of them was to
rehabilitate at the Clubs’ facilities and to attend the Clubs’
practices. I infer that the returning injured reserve players
were ready to comply with those requirements, but the Clubs
lumped them together with the multitude of physically fit
players and treated the injured players, without any justifica-
tion, reasonable or not, as if they were offering to play. The
Clubs had given no reason for their refusal to permit the in-
jured players to return. I conclude that the Clubs violated the
Act by applying the deadline rule to those injured reserve
players who offered to return to work on October 15.
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Individual claims
I turn, then, to the remaining claims of the injured reserve
players, most of whom were not paid for more than just the
last replacement game and were not paid for the weekend of
the canceled games. The themes that run through this portion
of the complaint are that, when the strike began, the players
were injured and, with one exception, had been placed by
their Clubs on injured reserve, that they remained on injured
reserve for the entirety of the strike, and that all the players
were so severely injured that they could not have played dur-
ing the strike anyway, whether they were on the injured re-
serve list or not. Indeed, most of the players were incapaci-
tated for the entire season.
Immediately before the strike began, the Clubs paid the in-
jured reserve players for all games following their injuries,
as the player contract required. Once the strike began and for
the duration of the strike, the Clubs stopped paying them.
The complaint alleges that the Clubs violated Section 8(a)(3)
and (1) by withholding their pay during the strike for periods
during which the players were otherwise eligible for pay.
Whether the Clubs’ suspension of pay violates the Act must,
under Texaco, Inc., 285 NLRB 241 (1987) (Texaco), be re-
solved by application of the Great Dane test for alleged un-
lawful conduct, quoted above. The Board stated, 285 NLRB
at 245-246:
Under this test, the General Counsel bears the prima
facie burden of proving at least some adverse effect of
the benefit denial on employee rights. The General
Counsel can meet this burden by showing that (1) the
benefit was accrued and (2) the benefit was withheld on
the apparent basis of a strike. . . .
Once the General Counsel makes a prima facie
showing of at least some adverse effect on employee
rights the burden under Great Dane then shifts to the
employer to come forward with proof of a legitimate
and substantial business justification for its cessation of
benefits. The employer may meet this burden by prov-
ing that a collective-bargaining representative has clear-
ly and unmistakably waived its employees’ statutory
right to be free of such discrimination or coercion.
Waiver will not be inferred, but must be explicit. If the
employer does not seek to prove waiver, it may still
contest the disabled employee’s continued right to enti-
tlement to benefits by demonstrating reliance on a non-
discriminatory contract interpretation that is ‘‘reason-
able and . . . arguably correct,’’ and thus sufficient to
constitute a legitimate and substantial business justifica-
tion for its conduct. Moreover, as under Great Dane,
even if the employer proves business justification, the
Board may nevertheless find that the employer has
committed an unfair labor practice if the conduct is
demonstrated to be ‘‘inherently destructive’’ of impor-
tant employee rights or motivated by antiunion intent.
The Clubs do not question the reasons why they withheld
the wages. I conclude that the Clubs suspended payment of
wages not only on the apparent basis of the strike but also
on the actual occurrence of the strike in accordance with the
Management Council’s detailed strike contingency plan,
which stated:
Clubs should allow normal access to its facilities by
players who choose to continue to practice and play for
the team. Injured players should be permitted access to
club facilities only so long as they follow club physi-
cians’ and trainers[’] rehabilitation instructions, attend
team meetings at the direction of coaches, perform
whatever on-field activities as their physical condition
permits, and otherwise function at all times as non-
striking members of the team. If any injured players en-
gage in any picket line activity they may be presumed
to be striking and treated as strikers.
. . . .
Strikers shall not be paid any portion of their sala-
ries. This applies to all strikers whether active, injured
reserve, or PUP. Medical treatment or rehabilitation for
strikers shall be furnished only at an outside facility
(e.g., the club physician’s office) and no club trainers
shall be involved in administering treatment or rehabili-
tation to strikers.
In response to questions asked by some of the Clubs, the
Management Council sent another memorandum on Septem-
ber 18, which read, in part, as follows:
1. Injured players who are on strike shall not be paid
any portion of their salaries. Injured players not on
strike must continue to be paid their salaries. The prob-
lem may be to determine whether an injured player is
on strike.
2. If an injured player engages in picketing or re-
spects a picket line, he shall be considered a striker. In
that case, medical treatment and rehabilitation shall be
furnished only at outside facilities (e.g., the club physi-
cian’s office) and not at the club facilities. If a player
attempts to both picket and gain access to club facilities
for rehab purposes, he should not be permitted to do so.
A player is either on strike or not; he cannot be both
a striker and a non-striking member of the team. The
choice is his, but he must make the choice.
3. The determination of whether the injured player
has chosen to be a non-striker shall be determined as
follows: (a) he must not engage in picketing nor indi-
cate by any actions or words that he is a striker; (b)
he must strictly follow club doctors’ and trainers’ rehab
instructions while utilizing club medical facilities; (c)
he must strictly follows [sic] club doctors’ and trainers’
instructions as to performing whatever on-field activi-
ties his physical condition permits; (d) he must strictly
follow coaches’ directives as to attending team meet-
ings and performing whatever on-field activities that are
authorized by club physicians and trainers; and (e) he
otherwise functions at all times both on and off club
premises as a non-striking member of your team.
4. The above-stated guidelines apply to injured play-
ers whether they are on the Active List, Injured Reserve
List or Physically Unable to Perform List at the time
of the strike and thereafter.
As is shown below, these policies changed the status of
some of the injured reserve players once the strike began.
Some players who previously had not been required by their
Clubs to attend meetings and practices suddenly were. Some
players who were rehabilitating at home were required to re-
109NATIONAL FOOTBALL LEAGUE
port to their team’s facilities and to perform activities that
they had not been asked to perform prior to the strike. These
events occurred because the strike intervened, and the above-
quoted measures and directives were effectuated because the
Management Council required that the Clubs put them into
effect. I conclude that the second part of the Board’s Texaco
test, that the benefits were withheld on the basis of the strike,
has been met.
One further comment, however, is in order. The Clubs re-
peatedly contend in their brief, consistent with the above-
quoted rules and instructions which partially premised a
player’s eligibility for weekly pay on his lack of sympathy
with the strike, that certain players were strikers or indicated
their sympathy with the strike and thus disqualified them-
selves from weekly pay. The difficulty with their argument
is that the Management Council’s instructions are legally
misguided and flawed. In Emerson Electric Co., 246 NLRB
1143 (1979), the Board held that an employer may not pre-
sume that affirmative strike support justified the termination
of existing disability benefits. An employee had an 8(a)(1)
right, the Board explained, to refrain from declaring his posi-
tion on the strike when he was medically excused. On the
other hand, while disabled employees need not affirmatively
disavow the strike action, they could not actively participate
in the strike without running the risk of forfeiting their bene-
fits prospectively. Thus, the Board concluded that once an
employee displayed public support for the strike, such as
joining the picket line, that would terminate his right to fur-
ther benefits.
Under the Board’s theory, some of the Management Coun-
cil’s instructions might have been valid. However, the Third
Circuit modified Emerson Electric on enforcement in E. L.
Wiegrand Division v. NLRB, 650 F.2d 463 (3d Cir. 1981),
cert. denied 455 U.S. 939 (1982), and disagreed with the
Board’s rationale. The Board reconsidered its position the
following year in Conoco, Inc., 265 NLRB 819 (1982), enfd.
740 F.2d 811 (10th Cir. 1984). There it held that an em-
ployer could not withhold a fully accrued benefit by showing
that a disabled employee actively participated in strike activi-
ties. Evidence of his participation did not render the em-
ployee a striker if he was so disabled that he was unable to
withhold his services from his employer in support of the
labor dispute. Texaco, 285 NLRB at 244.
That rule has been consistently applied by the Board since
then. Conoco, Inc., 287 NLRB 619 (1987); Gulf Oil Co., 290
NLRB 1158 (1988); Texaco, Inc., 291 NLRB 508 fn. 6
(1988). In GHR Energy Corp., 294 NLRB 1011 (1989), the
Board found that the employer violated the Act by not pay-
ing his employees their accrued sick pay, even though the
employees appeared on the picket line. In Texaco, 285
NLRB at 246 fn. 25, the Board reaffirmed that ‘‘even spe-
cific evidence of a disabled employee’s participation in strike
activities is of limited relevance under the Conoco/Great
Dane test. Such evidence may prove that a particular individ-
ual was no longer disabled.’’
As a result, I reject the Clubs’ position that various play-
ers’ sympathy for the strike, or picketing or attendance at the
picket line, or attendance at union meetings and union-spon-
sored practices, or maintaining contact with union leaders, or
keeping track of the progress of the strike, requires that
wages be withheld, especially because the Clubs do not
claim that the evidence supplied proof that any player was
no longer disabled and could have played football. Helca
Mining Co., 286 NLRB 1391 fn. 2 (1987). Nor do the Clubs
claim that any of their actions were taken to determine
whether the players were no longer disabled so that they
could have played football or could have engaged in a dif-
ferent form of rehabilitation. That determination would be
relevant. Otherwise, Board law is clear that a disabled player
cannot strike.
The Clubs’ principal defense is that the payments due to
the players on injured reserve are not accrued benefits and
thus the first test of Texaco has not been met. Proof of ac-
crual is critical, ‘‘because otherwise there is no basis for
finding that employee rights have been adversely affected,
given that an employer is not required to finance a strike
against itself by paying wages or similar expenses dependent
on the continuing performance of services.’’ Gulf & Western
Mfg. Co., 286 NLRB 1122 (1987). The player contract,
quoted above, the Clubs argue, is not written to compensate
players for past performance but is ‘‘designed to protect
wages that employees would otherwise have earned,’’ citing
Amoco Oil Co., 286 NLRB 441 (1987). Furthermore, wheth-
er injured or not, and whether they can play or not, the play-
ers are obliged to perform additional functions at all times,
to wit, to maintain their physical condition and to attend
practices and team meetings, including film sessions. The
General Counsel contends, to the contrary, that the benefit
was accrued, that it was ‘due and payable on the date on
which the employer denied [it],’’’ Texaco, 285 NLRB at 245,
that is, it was ‘‘based on past performance [and required] no
further work . . . for continuing receipt.’’ Id. at 246.
The Clubs’ reliance on Amoco is misplaced. There, the
employer’s benefit handbook noted certain situations in
which disability payments would be discontinued, including
periods when the employee would have been on a leave of
absence, or on layoff, or on vacation, and that benefits would
be resumed when the disabled employee was otherwise due
to return to work. The Board concluded that ‘‘work must be
available in order for a disabled employee to be entitled to
continued payment of disability benefits,’’ citing Amoco Oil
Co., 285 NLRB 918 (1987), and noted that this general re-
quirement had been applied consistently by the employer on
a corporatewide basis to various situations, including
lockouts. Thus, the Board found that there were two require-
ments for eligibility: The employee had to be disabled and
scheduled to work. The employer was entitled to discontinue
disability payments for periods when there was no work
available for the employee. Conoco, Inc., 287 NLRB at 621
fn. 9 (1987).
Unlike Amoco, the player contract provides for no situa-
tion requiring that payments be discontinued. Here, the bene-
fit was payable because the player was injured and then
placed on injured reserve. The benefit had vested. All the
conditions necessary for the payment had happened: there
was an injury while the player was performing his services
under his player contract and a decision by the Club to place
the player on injured reserve. The benefit was guaranteed. It
was payable and continued to be payable because the player
contract provided that the player would continue to receive
his yearly salary so long as the player was unable to perform
the service required of him. Because the player had been
placed on injured reserve, the Club withdrew the player from
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 The General Counsel moves that I reconsider my refusal to
strike the award, which was attached to the Clubs’ brief as an ex-
hibit. Although one could argue that the award should have been of-
fered in evidence during the hearing, as so many other awards were,
I renew my view that I am willing to read any legal authority that
the parties believe might aid in the resolution of the issues in this
proceeding. I deny the motion.
37 To the extent that the Clubs contend that the Board should defer
these three claims or certain other issues to arbitration, I deny their
motion. The major portion of this unfair labor practice proceeding
is not subject to arbitration. The allegations which are arguably arbi-
trable are insignificant when compared to the reinstatement issue and
most of the other unfair labor practices alleged in the complaint. Be-
cause the Board must determine a substantial part of the instant dis-
pute, there is no compelling reason for deferring to arbitration a few
of the less weighty portions of the complaint, all of which in any
event are intertwined with the nondeferrable complaint allegations.
Heck’s, Inc., 293 NLRB 1111 (1989), citing S.Q.I. Roofing, 271
NLRB 1 fn. 3 (1984); Sheet Metal Workers Local 17 (George Koch
Sons), 199 NLRB 166, 168 (1972), enfd. mem. 85 LRRM 2548 (1st
Cir. 1973).
work; and he could not be scheduled for work, whether there
was work or not.
The Clubs’ reliance on an arbitration decision involving
baseball is similarly misplaced.36 There, the arbitrator held
that the language in the player’s contract, which provided
that a disability ‘‘shall not impair the right of the Player to
receive his full salary for the period of such disability,’’
meant that players were not entitled to be placed in a better
economic position than healthy players. The arbitrator looked
to the dictionary definition of ‘‘impair’’ and found that ‘‘the
critical factor would seem to be harm to or reduction of
something that otherwise would have been present in full.’’
By using the word ‘‘impair,’’ the intent was to protect what-
ever right to salary the player otherwise would have had. The
loss of salary payments to the disabled baseball players
‘‘simply was an inevitable consequence of the unavailability
of salary to be protected against impairment.’’ Thus, the arbi-
trator’s decision is in accord with Amoco, which holds that
the disabled player would have a right to his salary only
when, if he were healthy, he would have been earning a sal-
ary but for the disability. Here, however, there is no similar
qualification for the injured reserve player to receive his ben-
efit.
Contrary to the contract in baseball, neither the football
player’s individual contract nor the collective-bargaining
agreement have a similar concept of ‘‘impairment,’’ which
the arbitrator expressly noted, was ‘‘unusual contract lan-
guage.’’ This record also lacks the negotiating history per-
taining to football’s injured reserve provision, whereas the
arbitrator in the baseball case had the benefit of the parties’
thorough presentation of that issue. In addition to the arbitra-
tor’s decision being unique to baseball, the decision is read-
ily distinguishable because he expressly reserved opinion
about what his result would be if, as here, the season contin-
ued in spite of the strike. For these reasons, the award, which
holds that the benefit in baseball is not an accrued benefit,
is distinguishable on its facts.
Proof of accrual most often will turn on a case-by-case in-
terpretation of the relevant collective-bargaining agreement,
benefit plan, or past practice. Texaco, 285 NLRB at 246. The
General Counsel’s position is that, once the player is injured
and placed on injured reserve, he does not need to perform
further work to ensure the continuing receipt of wages. That
is particularly true in two instances, the first occurring when
a player dies. The player contract specifically provides that
the remainder of the player’s salary for the season of injury
will be immediately paid to his beneficiary or his estate.
Upon the player’s death, there could no further requirement,
such as rehabilitating or reporting to meetings, which the
team could impose. The entire year’s salary for that season
is thus an accrued benefit.
The second instance involves an injury which is so serious
that a player cannot do anything. If a player is injured, is
hospitalized, and is expected to be and actually is immo-
bilized for the remainder of the season, that individual cannot
reasonably be expected to function as a football player; yet
he is still guaranteed his pay for the year. Similarly, a player
who is less severely injured, but still hospitalized for 4
weeks, is also guaranteed his pay for the period of his dis-
ability, including the 4 weeks during which he cannot, for
example, attend practices or view game films. The benefit is
accrued. The player has to do nothing more to ensure that
his weekly check will be paid.
Three players in this proceeding were particularly severely
injured (there were others), and the Clubs’ brief is almost si-
lent as to how to treat them, underscoring the difficulty of
their position that these benefits had not accrued. The Clubs
admit that James Demerritt, Tim Richardson, and Tim
Wrightman ‘‘were allowed by their respective clubs to reha-
bilitate at home prior to the strike, that they did nothing to
indicate to their clubs that they were striking, but that they
were not paid during the strike.’’ Thus, the Clubs claim that
these were nonstriking players who were not paid during the
strike and that any relief to which they might be entitled
should be pursued in a ‘‘contract claim.’’ In light of the
common policy followed by all the Clubs pursuant to the
Management Council’s directives, I infer that the failure to
pay these players was due to their failure to report to work
during the strike and to declare that they were not strikers.
In addition, the players’ respective Clubs attempted to find
out whether the players favored the strike and did not pay
them because the Clubs thought that the players did. As I
concluded above, this is an illegal reason for denying them
their benefits.37
a. James Demerritt
Broncos player James Demerritt was injured on August 4
or 5 in London, England, in a practice for an exhibition
game there on August 9. He suffered complete numbness and
was unable to move for 2 to 3 minutes. About a week after
the team returned to the United States, in a conference at the
Broncos’ training facility in Greeley, Colorado, the team
doctor, James McElhinneh, said that his examination re-
vealed that Demerritt had bruised his spinal cord and that he
would be a high risk for being paralyzed if he were to re-
ceive another injury. He said that the Broncos would never
allow Demerritt to pass a physical to play football again. The
doctor recommended that Demerritt abstain from football and
go home and lead a normal life. He left camp on Tuesday,
August 25. He was placed on injured reserve after he in-
curred his injury and he remained on injured reserve for the
entire season.
111NATIONAL FOOTBALL LEAGUE
Demerritt did not return to Denver until after the end of
the strike and had no conversation with any representatives
or officials of the Broncos between the end of August and
the end of the strike. When Demerritt was not paid by the
Broncos during the strike, his agent wrote to complain. The
Broncos replied that they wanted a letter stating that, if
Demerritt were eligible to play, he would have played during
the strike. Despite the fact that Demerritt sent such a letter
on October 30, he was not paid for the canceled game.
The Broncos’ request for Demerritt’s letter was a blatant
attempt to ascertain Demerritt’s position on the strike. Even
his favorable response was irrelevant to his entitlement to
benefits. His benefit was fully accrued. There was nothing
that he had to do that could have made his benefit any more
accrued than it was. In fact, the Broncos never even asked
him to perform any football-related functions. To the con-
trary, the Broncos told him that he would never pass a foot-
ball physical and that he was to abstain from football. I con-
clude that the Broncos violated Section 8(a)(3) and (1) of the
Act by not paying Demerritt for the canceled game.
b. Timothy Richardson
Timothy Richardson, a Giants’ running back, dislocated
his right patella during training camp on July 31. His knee
was realigned at a hospital and he returned to training camp
2 days later to start his rehabilitation. After a month, the
team orthopedic surgeon, Russell Warren, and head athletic
trainer Ronnie Barnes agreed that it would be best for Rich-
ardson to have surgery on his knee so that it would not slip
out anymore. He underwent surgery on September 1 and was
released from the hospital on September 5. He then returned
to the Giants’ training camp and conferred with Barnes, who
said that this type of knee surgery barred any rehabilitation
for 5 or 6 to 7 weeks.
Although the recollections of Barnes and Richardson differ
in numerous respects, there is no dispute that Richardson was
told that he could go to his home in Illinois or to California,
that the Giants provided Richardson with an airplane ticket
to his home in Illinois, that he left the New York area on
September 7 or 8, and that he did not return to Giants Sta-
dium until after the strike was over. There is similarly no
dispute that Richardson was in a cast brace immobilizer, that
he could not move his leg, that there was no rehabilitation
that he could have reasonably engaged in, and that he could
not play for the entire season. He was one of those injured
players for whom participation in team meetings and film
sessions would have made no sense, because there was no
expectation that he would rejoin the team for the remainder
of the season.
According to Richardson, his next contact with the Giants
occurred about 3 weeks later. Then he called Barnes and
asked how everything was. Barnes said that everything was
hectic because the strike had been going on for a week.
Barnes asked Richardson how his leg was doing, and Rich-
ardson said fine. Barnes told Richardson to sit back and relax
and not worry about anything because it was too hectic at
the stadium to do anything. Barnes asked Richardson to call
back in 3 or 4 weeks or after the strike was over. Three
weeks later, after the strike had ended, Richardson again
called Barnes and told him that his leg felt better and he
wanted to start some type of rehabilitation. Richardson testi-
fied that Barnes wanted him to start his rehabilitation in Cali-
fornia or Illinois because Head Coach Bill Parcells did not
want any injured reserve players in rehabilitation at Giants
Stadium. Barnes denied that he would have made any state-
ment about Parcells not wanting a player to rehabilitate at the
Club’s facility. In any event, Richardson said that he had
planned to return to New Jersey and he wanted to rehabilitate
there, and Barnes permitted Richardson to go, at the Giants’
expense, to the Meadowlands Professional Sports Care,
which Barnes partly owned.
Richardson started his rehabilitation there on October 23
and continued until March 1988. He was first placed on in-
jured reserve on September 1 and never attended practices,
team meetings, film sessions, or anything else at Giants Sta-
dium from that day forward. Like most of the other injured
reserve players, he was not paid for the canceled game and
the three replacement games. He first found out that he
would not be paid when Barnes gave him a letter saying as
much on December 23. Richardson complained that he could
not see why he would not be paid when Barnes had told him
to stay away for 5 to 7 weeks. Richardson testified that
Barnes agreed but said that he could do nothing.
The Clubs’ brief, by its failure to deal with this allegation,
essentially concedes that there is no defense to the failure to
pay Richardson for the four games, and I conclude independ-
ently that there is no defense. Richardson was incapable of
doing anything that might be meaningful to the Giants, who
placed Richardson on injured reserve and kept him there, and
who required nothing of him to recuperate or to receive his
benefit. The critical event occurred when he was injured and
when the Giants guaranteed his salary payments. The Gen-
eral Counsel properly contends that this was an accrued ben-
efit. I conclude that the Giants violated the Act by not pay-
ing him for the canceled and the three replacement games.
c. Timothy Wrightman
Timothy Wrightman, a tight end for the Bears, was on in-
jured reserve for the entire 1987 season, having had knee
surgery on September 3 in California to repair torn ligaments
and cartilage. Released from the hospital on September 6, he
returned to Chicago and began limited rehabilitation at the
team’s facility on Wednesday, September 9. Among the ex-
ercises that he concentrated on were those to extend and flex
his knee, in other words, to build the range of motion of his
leg, which for the rest of each day was kept in a nonweight
bearing removable brace with metal rods on the side, which
could be adjusted so that the knee could be bent.
Wrightman continued with his exercise program on Friday,
September 11. Later that afternoon, he called his tight end
coach, Steve Kazor, to say that he was having a ‘‘very rough
time’’—he was still on crutches, was still wearing a non-
weight bearing cast, was living alone, was having a difficult
time going to the bathroom and cooking, and was having
food brought in because he could not drive—and wanted
Kazor to ask Head Coach Mike Ditka if he could go to his
home in California until he could take care of himself. Kazor
called back an hour later with Ditka’s approval. Wrightman
returned to Chicago on October 1 or 2, where he stayed for
less than a week, and returned again on October 20. He re-
ported to the Bears’ facility on October 21, still on crutches
and still wearing a nonweight bearing cast. When Wrightman
was paid in 1988 (his 1987 salary was contractually de-
ferred), he was paid for only 12 games.
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 The counsel for the General Counsel moved for an order permit-
ting him to withdraw the claim of Mark Behning, which I granted
on December 11, 1989.
39 The Clubs contend that this test is based on the severity of the
injury, but it is not. The accrued nature of the benefit is merely more
apparent when one considers the more serious injury.
The Bears’ defense at the hearing was based solely on the
testimony of head athletic trainer Fred Caito, who said that
he had been directed by the president of the team to advise
all players that, if they went on strike, they were to get their
treatments and rehabilitation at the clinic of the team’s ortho-
pedic surgeon, Dr. Clarence Fossier. Only if they were not
going on strike could they continue to come to the Bears’
facility. Caito testified that he followed these directions.
However, he conceded on cross-examination that he never
talked to Wrightman. He did not know where Wrightman
was and he never heard from him during the strike.
In these circumstances, I conclude that Wrightman’s bene-
fit had accrued. When he was injured, the Bears placed him
on the injured reserve list with the knowledge that he would
be unable to play for the entire season. When Wrightman
was unable to function on his own in Chicago, the Bears per-
mitted him to go to California and paid for his air fare.
There was nothing further that the Bears required of
Wrightman for him to be eligible to receive his weekly pay.
That benefit was withheld from him solely because of the oc-
currence of the strike. The Bears failed to show any substan-
tial and legitimate business justification for not paying
Wrightman. I conclude that the Bears violated the Act.
These three players were so severely injured that, when
their injuries occurred, their respective Clubs were aware that
they would not be able to perform any meaningful football-
related function in the foreseeable future. They had been
placed on the injured reserve list, and there was nothing fur-
ther that their Clubs required of them in order to ensure that
their salaries would be paid. Their benefits had accrued.
Some, but not all, closer cases follow,38 which involve in-
jured reserve players who were not as severely injured as
these three or who had already begun their rehabilitation
when the strike began. Some were able to engage in a little
exercise, running or lifting weights, using muscles unaffected
by their injuries; some had begun rehabilitation; some at-
tended team meetings and practices.
The Clubs argue that these functions are part of the play-
er’s duties even while injured. The player contract, they con-
tend, requires all players to maintain themselves in excellent
physical condition, and the collective-bargaining agreement
requires the players to do all that the Clubs ask of them, spe-
cifically including the requirement to attend practices. The
Clubs argue correctly that they depend on players of quality
to play in the games and are interested in their earliest pos-
sible recovery. If the players are good players, the Clubs are
anxious for their early return because they are the players
who made the teams, and they were selected because they
were the best available. The teams would prefer to have their
best players on the field, not those who were second-best.
The desire that the injured players rehabilitate themselves
as quickly as possible is not based solely on producing a
winning team. As found above, the player’s average salary
is $15,000 for each game. Many receive much more. The
Clubs naturally want to save that money, if they can, and not
spend the money for a high-priced player who is not per-
forming. Conversely, if players are not deemed to be good
enough to help the teams, the Clubs nonetheless want them
to recover at an earliest date so that the Clubs can release
them and no longer be responsible for their wages.
The player contract commits players to maintain their
physical condition, and the Clubs submitted numerous
awards of arbitrators who held that certain players were not
entitled to all their wages because the players had not partici-
pated fully in all programs established by the Clubs to reha-
bilitate them. Any other interpretation would permit a player
to sit back and collect a guaranteed minimum of a year’s sal-
ary without moving a muscle, even though with cooperation
the player could have been fully rehabilitated in a month.
The players must, therefore, rehabilitate with as much co-
operation as possible to minimize the Clubs’ costs. It is that
cooperation which, the Clubs contend, removes the wage
benefit from the category of accrued benefits, by the Board’s
own definition in Texaco, because the player is required to
perform further work for continuing receipt of his game
wages.
However, a Club’s obligation to pay wages to its injured
player arises not as a result of his compliance with his duty
to rehabilitate but as a result of the fact that he has been so
seriously injured that his Club has decided to place him on
injured reserve and thus not to play him for at least four
games. The moment his name is on the injured reserve list,
he becomes entitled to be paid for those four games and, as
an injured reserve player, he continues to be guaranteed his
pay for all games until his Club activates him. Thus, it is the
serious injury and the Club’s subsequent placement of the
player on the injured reserve list that cause the guarantee,
and the player is entitled to his wages because he is injured
so seriously that he is placed on the injured reserve list, and
for no other reason. In cases of death and such serious inju-
ries suffered by Demerritt, Richardson, and Wrightman, the
player has to do nothing more to be entitled to his pay. For
those players, the benefit has accrued.39
There is no valid reason why the benefit should be any
less accrued for those players for whom there is a hope of
more immediate recovery. The Clubs considered their inju-
ries serious enough that they were willing to forfeit their
players’ services for at least four games and, once they
placed the players on injured reserve, they knew that they
immediately guaranteed the players’ pay for four games. As-
suming, as is the case with a number of the players involved
in this proceeding, that a player was disabled for a week
after being placed on injured reserve and could do nothing,
and that player did not do anything, his benefit is clearly ac-
crued. If he recovered sufficiently so that he were able to
start some rehabilitation, I see no valid reason why his bene-
fit should change from one that is accrued to one that is not.
Rather, the continuation of the benefit is in the player’s
hands. If he were required in the course of his rehabilitation
to perform certain tasks, and he did not, he would be subject
to losing his benefit and having his accrued right defeased.
Amoco Oil Co., 285 NLRB 918, 919–920 fn. 9 (1987).
I am less inclined to agree with the principle that a play-
er’s failure to practice or attend film sessions results in the
same defeasance. No arbitration award submitted by the
Clubs supported that proposition, which does not make that
113NATIONAL FOOTBALL LEAGUE
40 In addition, it is important to note that the injured reserve play-
ers may not have gone to their teams’ training rooms to obtain the
treatment necessary for their rehabilitation, but they did follow their
Clubs’ advice about alternative treatment. In other words, for the
most part, the Clubs seek to avoid the responsibility for paying the
players despite the fact that the players were following their Clubs’
orders for obtaining medical help, albeit at a different location.
41 Barnes said the date was inserted only to make it a valid round
trip ticket. However, the ticket could have been issued with an
‘‘open’’ return. Furthermore, Barnes admitted that Caito told him to
return to the Bears’ facility around October 1.
42 Caito’s attempt later in his testimony to deny that this is what
he said is unbelievable. His earlier testimony demonstrated that this
was his understanding of which players would be considered strikers
and which ones would not. Furthermore, it is consistent with the
Management Council’s memoranda quoted above.
much sense in any event. After all, the players are paid to
play football games, and not to engage in practices. Practices
are important only as far as they prepare the players for the
football games. The networks pay to televise games, not to
air practices and team meetings. Fans pay money to see
games and, except for those true fanatics and for the merely
curious, do not pay to see players practice.
Players’ wages are structured in terms of the games
played. The players are paid a scale for their participation in
preseason training camp. When the regular season begins and
a player misses a practice without excuse, he is typically
fined an amount which is wholly unrelated to the amount of
his wages. The player contract requires, unless otherwise
agreed to, that players will be paid their yearly salary in
equal weekly or biweekly installments over the course of the
regular season, starting with the first regular season game.
No one testified that a player who missed all the practices
during a week but still played in the game that weekend was
docked for missing practices or team meetings, or that a
player who was traded on a Thursday and reported to his
new team on Friday was not entitled to his full game’s pay
by his new team if he was activated for that weekend’s
game. Thus, the contract and the actual practice of the Clubs
demonstrate that a player’s failure to engage in any function
other than rehabilitation would not result in the loss of the
injured reserve benefit.
I now review the facts regarding the remaining injured re-
serve players, with particular emphasis on the nature of their
injuries, whether they were required to perform certain tasks
in furtherance of their rehabilitation,40 or whether their Clubs
required them to do something different, because of the
strike, which would be just as much a violation of the Act
as a violation under the Great Dane–Texaco rationale.
d. Bears
(1) Lew Barnes
Lew Barnes, a Bears’ punt returner and wide receiver,
fractured his fibula and ankle and tore ligaments in his ankle
during practice in training camp and underwent surgery on
August 26. Dr. Fossier, the team’s orthopedic surgeon, told
Barnes upon his release from the hospital in early September
that he would not be playing that season and that he was to
take 4 to 6 weeks off and come back and get ready for ther-
apy. Barnes testified that he went from the hospital to the
Bears’ facility, where he met with trainer Caito, who men-
tioned the same recovery period as the doctor and gave
Barnes permission to return to his home in San Diego, Cali-
fornia. The team paid for his round-trip ticket, which had a
return date of October 1.41
Dr. Fossier instructed Barnes to have the Chargers’ team
doctor take X-rays when Barnes arrived in San Diego. In-
stead, Barnes’ agent suggested that he see Dr. Richard Rich-
ly, who wanted to start Barnes on rehabilitation. Barnes
checked with Caito, who in mid-September approved of all
but one of the therapies that Richly had suggested. On or
about October 8, 9, or 10, Barnes called Caito to complain
that he had not been receiving his game checks. Caito said
that the players who were on injured reserve that were re-
ceiving therapy at the Bears’ facility were considered non-
strikers; but those who were receiving therapy at all other fa-
cilities were considered strikers. Barnes asked how that ap-
plied to him because he had been receiving therapy else-
where even before the strike started. Caito did not respond
except to say that, if Barnes did not return to Chicago to re-
ceive therapy at the Bears’ facility or otherwise did not cross
the picket line, he would be considered a striker.42 Barnes
said that he was receiving therapy in San Diego before the
strike, that he would continue to receive therapy there, and
that he wanted to finish his therapy there.
Barnes admitted in his prehearing investigatory affidavit:
‘‘I did not return to the Bears’ facility on October 1, and I
decided to stay in San Diego because I knew the strike was
still going on and I just did not want to deal with it, so I
remained in San Diego and continued my treatments.’’
Barnes’ excuse, that he did not want to ‘‘deal’’ with the
strike, was insufficient. He was required to do, within legal
limits, what the Bears required of him; and I find that the
Bears’ request for his return was not discriminatory and his
failure to return was sufficient to justify the Bears’ refusal
to pay him after October 1. Barnes admitted that he was to
return to start his therapy.
However, his failure to return was not the Bears’ reason
for refusing to pay him for the canceled game. From Caito’s
testimony, it is evident that once Barnes did not report to the
Bears’ facility at the beginning of the strike, the Bears con-
sidered that he was a striker and not entitled to be paid.
When Barnes called in the second week of October to com-
plain that he had not been paid, Caito answered, as other
Clubs seem to have replied to other players, consistent with
the strike contingency plans and the above-quoted questions
and answers, that Barnes was a striker because he had not
come to the Bears’ facility. Because Barnes persisted with
the treatment program that he was receiving before the strike,
which had been approved by the Bears, the Club was not en-
titled to make any presumption that Barnes was a striker at
the beginning of the strike. His benefit had accrued and,
under Texaco, could not be taken away; but Barnes’ failure
to return on October 1 sustains a finding that his benefits
should defease. I find a violation only to the extent of one
game’s pay for the canceled game. Barnes testified that he
returned to Chicago on October 14, but he never offered to
return to the Club before the last replacement game and he
offered no reason for his failure to report with all the other
Bears’ players. He is therefore not entitled to be paid for the
last replacement game.
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2) Steve Fuller
Steve Fuller, a quarterback for the Bears, had surgery on
his right shoulder (his throwing arm) on August 19. He was
placed on PUP status and the prognosis was that he would
not be able to competitively participate in practice (meaning
put pads on, throw the football, and participate in drills) for
12 to 16 weeks. After his surgery, he recuperated at home
for a week or more and then came to the team’s facility once
or twice a week to change his dressing or to chat with other
players. Until the Bears’ first game on Monday night, Sep-
tember 14, he attended one or two team meetings. There was
no evidence that he had been required to attend these meet-
ings or required to have his dressing changed at the Bears’
facility. Following the first game, he came in daily, but his
rehabilitation was limited to taking a whirlpool bath and
doing an exercise intended to increase the flexibility of the
shoulder joint. During the first week, he attended two or
three team meetings, but no film sessions.
By Sunday, before the second game, Fuller was able to
stretch his arm above his head; and he met with Caito and
Drs. Fossier and Berna, another of the team’s doctors, to de-
termine what should be the next step in his rehabilitation.
Fuller testified that Berna did not want him to engage in any
heavy weight lifting resistance until he had full range of mo-
tion in his shoulder. Berna showed Fuller the kinds of exer-
cises he should do in the next few weeks, and Caito sug-
gested and then told Fuller that his rehabilitation should take
place at Dr. Fossier’s clinic and that Mike, who was a reg-
istered physical therapist and one of the Bears’ trainers who
worked on game days, should do the rehabilitation. The doc-
tors agreed. At no time was Fuller advised that he was to
report to the Bears’ facility for rehabilitation or treatment or
to attend meetings or film sessions, if he were to be paid
during the strike.
On Monday, September 21, Fuller began his rehabilitation
at Dr. Fossier’s clinic, and his rehabilitation continued there
for 7 weeks. For the first 5 weeks, Fuller attended the clinic
5 days a week; for the next 2 weeks, 3 days. His sessions
lasted from 2 to 2-1/2 hours and were scheduled according
to Mike’s availability. Once during both the second and third
weeks of the strike, Fuller visited the Bears’ facility to pick
up his mail and messages. The next week, on October 15,
he attended the team meeting called by Mike Singletary, the
players’ union representative, with representatives of the
team, where the players offered to return to work. Later, he
saw Caito, who said that he thought that Fuller was progress-
ing well and that he should be able to start lifting weights
very soon. However, Caito advised him to continue to keep
his appointments at the clinic.
The following Monday, October 19, after the end of the
strike, Fuller reported to the Bears’ facility and began doing
weight lifting under the directions of Clyde Emrick, the
Bears’ weight and conditioning coach, about three times each
week for the first 2 weeks. At the same time, he kept his
appointments at the clinic (then 5 days a week; the following
2 weeks, 3 days a week), and Caito reemphasized that Fuller
not only was to do his weight lifting at the Bears’ facility
but also was to keep his appointments at the clinic. From
October 19 to the end of his treatments at Dr. Fossier’s clin-
ic, Fuller attended about half of the team’s meeting and film
sessions. Fuller testified that he had never been told that he
had to do anything more to be paid for the canceled and
three replacement games. He was not, however, paid for
those games.
The Bears’ defense is based wholly on the testimony of
Caito, who said that he had been directed by the Bears’
president to advise all players that, if they went on strike,
they were to get their treatments and rehabilitation at Dr.
Fossier’s clinic. Only if they were not going on strike could
they continue to come to the Bears’ facility. Caito stated
early in his testimony that he followed these directions.
However, as noted above, he later admitted that he never
talked to Wrightman. Furthermore, Caito said that he did not
talk to Barnes before the strike, but gave him the instructions
only when Barnes telephoned from San Diego. Caito said
that he first talked with Fuller on the Sunday before the
strike, and what he told Fuller was exactly what he had been
instructed to tell him, that is, if he went on strike, that he
should go to Dr. Fossier’s clinic. Contrary to Fuller, he said
that Fuller was scheduled to attend, and did attend, the team
meeting each day.
Fuller was very bright, intelligent, and completely sincere
and dedicated. I find no persuasive reason to find his recall
suspect, and the fact that neither of the two doctors testified
leads me to believe that they would not have faulted Fuller’s
recall of the instructions given to him on the Sunday before
the strike. In light of Caito’s original broad testimony that
he talked with each and every one of the injured reserve
players before the strike was called, and his subsequent ad-
mission that he did not talk to Wrightman at all and talked
to Barnes only when he called in several weeks after the
strike began, I find that he inflated his testimony to benefit
the Club. He was too quick to testify in favor of his Club’s
position, despite the fact that he must have known which
players were claimants in this proceeding. His failure to limit
his broad testimony leads me to conclude that he should not
be believed, and I credit Fuller. I find, therefore, that Fuller
was not required to report to the Bears’ facility during the
strike but, instead, that he carried out precisely the instruc-
tions given to him by his team.
That makes considerable sense in light of the extent of
Fuller’s injury and the fact that the Bears did not have the
most sophisticated training room equipment which normally
would be used for the rehabilitation of such an injury. It is
likely that Caito said, as Fuller testified, that he would be
better served by rehabilitating at Dr. Fossier’s fully equipped
clinic with a trainer who had ample time to spend with
Fuller. This conclusion is further supported by the fact that
Fuller continued to rehabilitate at the clinic even after the
strike had ended, although he started to do weight lifting at
the Bears’ facility on the Monday after the strike ended.
Even then, Fuller did his lifting only 3 days a week, 2 days
less than what Caito said Fuller was ready to do almost a
month before. (Caito testified that, as of September 21,
Fuller would have been in the late stages of his range of mo-
tion work and early stages of light resistance work, which
would have required him to rehabilitate at the Bears’ facility
5 days of work.) It seems obvious that, but for the strike,
Fuller would have rehabilitated at the clinic, which was
equipped to perform the rehabilitation. I find it unlikely that
Caito would have told him to do anything else.
In addition, the testimony of Bears’ treasurer Ted Phillips
indicates that the team was concerned not so much with
Fuller’s return to actual duty as it was with Fuller’s mere
115NATIONAL FOOTBALL LEAGUE
43 My conclusion about Barnes is essentially the same. The Bears
considered him a striker because he was still in California and had
not declared that he was not on strike.
44 There were about six Browns’ players on injured reserve who
crossed the picket line and continued to receive treatment.
45 I reject the General Counsel’s new claim in his brief that
Tessendorf admitted on cross-examination that he told Bell to resign
from the Union in order to get paid. It was not testified to by Bell,
and Tessendorf’s testimony is unclear.
declaration that he was not on strike. When Fuller com-
plained that the Bears had no reason to deny him his game
checks because he was doing everything that he had been re-
quested to do, Phillips replied that Fuller should have called
the team and said that he was not on strike. I conclude that
Fuller was being discriminated against because he did not
make that declaration.43 Accordingly, the Bears’ failure to
pay Fuller for the canceled game and the three games played
during the strike violated Section 8(a)(1) and (3) of the Act.
e. Albert Bell
Albert Bell, a rookie wide receiver for the Browns, broke
a bone in his left hand during training camp on August 25.
His finger was stitched and cast in a splint at the Cleveland
Clinic by Dr. Tom Anderson, the Browns’ associate team
physician and an orthopedist. Bell then returned to the team’s
facility, and Bill Tessendorf, the team’s head athletic trainer,
told Bell that there was no treatment that he could engage
in. He was merely to keep the wound clean. In the mean-
time, Bell would be placed on injured reserve.
According to Tessendorf, all injured reserve players are re-
quired to report to the Browns’ facility every day but Sun-
day, and he or the team doctor or both advised Bell to report
to have his wound cleaned three times a day, sometimes
under the supervision of one of the trainers. From then until
the beginning of the strike, Bell reported to the Browns’ fa-
cility almost every normal practice day (Tuesday was an off
day and Bell had no transportation except with an active
player) and, like all other players, attended team meetings
and film sessions, and later practices, although he only
watched. He also soaked his finger in a solution of hydrogen
peroxide two or three times a day, at least once at the
Browns’ facility, and did some conditioning, such as running
and riding a stationary bike. On September 6, the team phy-
sician, Dr. John Bergfeld, revised the treatment to a dry
dressing, to be changed three times each day. Because there
was a concern of potential infection, Bergfeld instructed the
trainers to watch over Bell and look for any change in the
nature of the wound’s discharge. As a result, Bell was under
the constant care of the Browns’ personnel. By this time,
Bell had also started some weight lifting.
The day before the strike, Head Coach Marty
Schottenheimer advised his players at a team meeting that
there was a great possibility that there was going to be a
strike and that everyone should remain strong and ‘‘to stay
as a team and do everything together.’’ Once the strike
began, Bell did not report to the Browns’ facility. He contin-
ued to clean his finger, but only at home. Within the week
after the strike began, on September 28, Dr. Bergfeld advised
him to go to the hospital. X-rays showed that he had an in-
fection on the bone and this was treated, first, by antibiotics
intravenously, and, second, by surgery, after which the intra-
venous treatment continued. Bell was hospitalized for ap-
proximately 4 weeks and was released on or about October
20. After that, Bell returned to the Browns’ facility, where
he cleaned his finger twice a day, two or three times a week.
Bell continued to be on injured reserve for the entire season.
Bell was paid only 12 game checks, none for the canceled
game or the three strike replacement games. He testified that
he had never told anyone that he was on strike, he was never
told to report to the Browns’ facility during the strike, and
he was never told what he had to do in order to be paid dur-
ing the strike. Tessendorf’s testimony was completely to the
contrary. He said that he received from his management a
detailed list of instructions for employees’ responsibilities if
there were to be a strike. He was to tell the injured reserve
players that, if they were not going to strike, he could con-
tinue to provide treatment and rehabilitation in the team’s fa-
cilities. If they were to strike, however, he could not treat
them and the players could not use the team’s facilities.
Those that crossed the picket line and reported to the facility
would be paid, so long as they participated in either rehabili-
tation or practice. If they did not cross the picket line, they
would not be paid.
Tessendorf testified that he told Bell that, if he wanted to
cross the picket line and not honor the strike, he could come
into the Browns’ facility, be treated and work out there, and
be paid.44 He specifically told Bell on September 21 that, if
he were going to honor the picket line, it was important for
him to keep in contact with the training room, because he
had a wound which still had a chance of infection. He need-
ed to continue his medical treatment, and he needed to keep
his wound clean. Tessendorf gave him additional supplies to
dress the wound and told him that he had scheduled appoint-
ments with the Browns’ physicians that he had to keep. Bell
called only once during the strike, asking Tessendorf when
he could get out of the hospital. Tessendorf replied that Bell
needed to remain in the hospital to receive his intravenous
treatment.
Until the beginning of the strike Bell had reported to the
Browns’ facility, received his treatments, and attended team
meetings and film sessions. He was told that he would have
to continue to report to the facility during the strike in order
to qualify for benefits, and that involved no change from
what Bell had previously done. Bell decided to strike and not
rehabilitate as he had done before. He is not entitled to re-
ceive his pay for the canceled game.45
When Bell’s wound became infected, he was on strike, but
he was still on injured reserve, too. His hospitalization
changed his status. He was no longer able to strike, because
he could not report to the Browns’ facility and attend meet-
ings as of September 28. Therefore, although his accrued
benefit had defeased by reason of his failure to rehabilitate
himself at the Browns’ facility once the strike began, with
his hospitalization, there was no activity that he could have
physically engaged in and did not, which would have caused
a loss of his benefits.
In so finding, I reject the claim that Bell could have re-
ceived intravenous feeding of antibiotics at the Browns’
training facility. Even if I credited Tessendorf that he had the
ability to perform such a technique, Bell received treatments
in the hospital 24 hours a day. There was not a hint that the
athletic trainers were prepared to do this around the clock.
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 Tessendorf testified that, if Bell had indicated that he was going
to cross the picket line, he probably would have been paid even
though he was in the hospital but, to be paid, he probably would
have had to notify the Club that he was not on strike. This testimony
clearly reflects the importance that Tessendorf attached to Bell’s
sympathies for the strike, rather than Bell’s actual service to the
Club.
47 Such an examination is requested by the NFL to determine
whether the player on injured reserve status has a legitimate injury
or if the team is stockpiling the player for the purpose of maintain-
ing control over more players than League policies permit.
Rather, Tessendorf told Bell during his hospitalization that he
could not leave the hospital because he needed to remain on
intravenous medication and Dr. Bergfeld felt uncomfortable
releasing Bell to home care and antibiotic therapy. Further-
more, Tessendorf had never administered this type of treat-
ment before. Finally, the Browns’ physician sent Bell to the
hospital. He never offered him the alternative of reporting to
the training facility.46 In light of the obvious seriousness of
Bell’s condition, I am not inclined to accept Tessendorf’s
testimony that his training room was in any way a substitute
for a hospital, where this possibly ‘‘fatal’’ condition, accord-
ing to Tessendorf, could be treated.
Accordingly, I find that Bell was entitled to be paid for
the three replacement games.
f. Derrick Crawford
Derrick Crawford, a wide receiver for the 49ers’, was on
injured reserve status for the entire 1987 regular season. On
July 21, the first day of training camp, he fractured his fifth
metatarsal bone in his left foot. He required surgery on Au-
gust 1, in which Dr. Michael Dillingham, the team ortho-
pedic surgeon, inserted a screw in Crawford’s foot to keep
the bone together. Two or three days after his surgery, he
was released from the hospital; and the 49ers paid for his air
transportation to return to his home in Memphis, Tennessee.
There, he went to Dr. Cyst, an orthopedic surgeon who had
treated him before and who removed his stitches and per-
formed some rehabilitation. Crawford gave all bills he re-
ceived from Cyst to Lindsey McLean, the 49ers’ head ath-
letic trainer. Crawford was never rebilled for Cyst’s services,
and I infer that the 49ers paid Cyst.
Crawford talked several times with McLean, and McLean
made arrangements in early September for Crawford to be
examined by an NFL neutral physician47 in California. He
traveled to California and returned home on September 18,
the Friday between the first and second regular season
games. The 49ers paid for his ticket. During this visit,
Crawford also saw Dr. Dillingham, who examined him brief-
ly and said that he wanted to see Crawford again in 2 weeks.
Crawford testified that, while he was home, he talked with
McLean and said that he saw no need to return to California
because Cyst was an orthopedic surgeon and was doing a
good job and that McLean agreed that it was unnecessary for
Crawford to return. McLean’s testimony was entirely dif-
ferent. On September 22 he called Crawford to tell him that
he was calling on behalf of the 49ers’ general manager, who
instructed him to check with all the players on the injured
reserve list to see if they were or were not participating in
the strike. Crawford said that he was on strike with the rest
of the players. McLean told him that he was scheduled to
be reexamined in San Francisco in 2 weeks. He was allowed
to see the team physician but he was not allowed to see
McLean or receive treatment at the facility. He asked what
Crawford’s plans were, and Crawford said that, since he was
in Memphis, he would prefer to see his local orthopedist,
rather than return to San Francisco.
The 49ers had paid Crawford weekly since he was injured.
While he was recuperating at home, he was paid his weekly
training camp compensation. Once the season began he was
paid weekly his regular game check for the first two games.
However, with the beginning of the strike, the checks
stopped. Between the second and third replacement games,
Crawford telephoned John McVay, the 49ers vice president
and general manager, to ask why he was not being paid.
McVay replied that, in order for Crawford to get paid, he
would have to come to San Francisco, cross the picket line,
and get treatment for his foot in the 49ers’ treatment room.
Crawford said that he was already home when the strike
started and asked why he had to return. McVay restated that
Crawford would have to get his therapy in San Francisco to
be paid and that, since he was home, he was considered to
be on strike. Crawford argued that he was already home be-
fore the strike began. Crawford was not paid for the strike-
canceled game or any of the replacement games. He returned
to San Francisco on October 20 pursuant to McLean’s re-
quest 3 days before.
Although McLean kept meticulous records, and he had no
record of the fact that he called Crawford on September 22,
I credit McLean’s recollection of his telephone call with
Crawford. McLean said that he did so pursuant to McVay’s
instructions that the 49ers had to determine who was and
who was not on strike so that it could advise the NFL. I
found Crawford’s recollections of his telephone conversa-
tions very hazy and imprecise and, in some instances, incon-
sistent and contradictory. Although Crawford was not asked
and, therefore, did not directly deny the essence of McLean’s
testimony, I see no reason why, in any circumstance,
McLean would not have been interested in the well-being of
the players and particularly no reason why he would have
overruled the team’s doctor, who, his notes indicated, wanted
to see Crawford on or about October 1.
Therefore, Crawford had the duty to rehabilitate himself
and, by not returning to San Francisco to see the doctor, he
did not comply with what the 49ers required of him. From
that point until he made himself available to do what he was
required to do under the collective-bargaining agreement, he
might well have lost his entitlement to benefits. The doctor
might have found that Crawford was well enough to begin
a rehabilitation program at the 49ers’ facility, and Crawford
would have been required to pursue that program. However,
until the time that Crawford failed in his responsibility,
Crawford would have been entitled to be paid his game pay,
so he is certainly entitled to be paid for the canceled game.
Under these facts, however, he is also entitled to be paid
for the three other games. The uncontradicted conversation
between Crawford and McVay reveals that Crawford’s fail-
ure to return to San Francisco for his appointment with Dr.
Dillingham was not the reason why Crawford was not paid.
McVay stated that Crawford was not paid because he was at
home and not in San Francisco, that he had not crossed the
picket line, and that he had not received his therapy in the
training room, behind the picket line. Because of these rea-
117NATIONAL FOOTBALL LEAGUE
sons, not his failure to see Dr. Dillingham, the 49ers consid-
ered that he was on strike.
As should now be abundantly evident, these are not valid
reasons to deny a player his accrued benefit. Crawford had
done nothing less than what he had done before. McVay im-
posed new conditions on him only because of the strike, and
not because of his belief that Crawford was able to perform
any meaningful service under his contract or that the team’s
doctor would have found that he could do more than merely
stay at home. For this reason, the Club’s reliance on Texaco,
Inc., 179 NLRB 989, 993-994 (1969); Texaco, Inc., 291
NLRB 508 (1988); and Texaco, Inc., 291 NLRB 525 (1988),
is unpersuasive. A strike does not permit an employer to
change an employee’s terms and conditions of employment
without reason. When strikes were called in the three cited
decisions, the employer demonstrated that its change of vaca-
tion schedules was justified by the business necessity of at-
tempting to continue its operation and get its work out. There
was also adequate contractual language which permitted the
employer to make the changes. Here, the Club’s action was
taken solely to penalize the player for his Union and pro-
tected and concerted activities and for no justifiable reason.
John Dory Boat Works, 229 NLRB 844, 849–850 (1977);
Reeves Bros., Inc., 207 NLRB 51 (1973).
Again, the Club might have had a valid defense if it had
acted because of the missed doctor’s appointment, but even
that reason pales in consideration of the record’s demonstra-
tion that players often missed doctor’s appointments without
fine, certainly not the loss of three games’ pay, which for
Crawford was more than $30,000. Accordingly, I find a vio-
lation of the Act.
g. Eagles
(1) Brad Booth
Brad Booth was a free agent defensive back and special
teams player for the Eagles. On August 12, during training
camp, he suffered a hairline fracture of his left thumb which
did not improve despite therapy and decreased activities. His
thumb was X-rayed again on August 18 and his hand was
placed in a fiberglass cast. He continued to do stretching ex-
ercises and to watch practice, but he engaged in no contact
drills. Booth was one of the players in this proceeding for
whom his team saw no indication that he would be able to
contribute to the team’s success. Indeed, in a summary of
Booth’s condition, the team noted that he would be on in-
jured reserve for several weeks and would undergo minor
therapy to regain his range of motion. Then he would ‘‘be
released from the ball club. He has no chance of making the
ball club. It is an injury that will resolve itself through rest
. . . .’’ The cast was removed on September 17 by team
doctor, Vincent DiStefano, and from then until the strike
Booth reported daily to Veterans Stadium for therapy and
was given hot and cold whirlpool treatments, electronic stim-
ulation, and massage. He also continued to stretch and watch
practice, but otherwise did not engage in any contact.
On Tuesday, September 22, the first day of the strike,
Booth reported to the training room and saw a notice on the
blackboard that a team meeting was scheduled for 9 a.m.
Coach Buddy Ryan presided and said that he did not know
whether there was going to be a strike or not, but his gut
feeling was that there was. He wanted the team to either
strike or not strike, and to do it as a team. If the team did
strike, he wanted the players to stay in touch with one an-
other as a team and to stay in shape and, depending on the
length of the strike, to conduct some practices.
Later, Booth was told that Otho Davis, the team’s head
athletic trainer, wanted to see him and the other injured re-
serve players. Booth and Davis talked alone. According to
Booth, Davis said that the stadium facilities and the training
room would not be available to Booth for treatment. He rec-
ommended that, during the period of the strike, Booth should
go for treatment to Paoli Medical Center, which is about 50
minutes away from the Stadium. Booth asked whether there
would be any problem if he went home to Los Angeles, be-
cause he could get the same treatment there. Davis rec-
ommended that Booth go to Paoli. Booth then went back to
his locker, cleared out his personal belongings, and left the
facility. The following day, he went home, where he received
the same kind of therapy that had been recommended by
Davis.
However, he continued to have pain in his thumb; and the
head trainer at the University of Southern California rec-
ommended that he see that team’s doctor, Richard Diehl,
who thought that the cast had been prematurely removed.
Booth was placed in a cast again, this time a slightly larger
one, which he was told to wear for 4 to 6 weeks. He re-
turned to Philadelphia on October 14, because he had heard
rumors that the strike was about to end, and attempted, un-
successfully, to report to the facility on Thursday, October
15, with the other players. He finally returned the following
Monday, October 19, when all the other players were per-
mitted to report.
Booth had asked Dr. Diehl to tell the Eagles about the
new cast, and, when Booth returned to the Club, he was still
wearing the cast. Booth assumed that Davis had been told by
Diehl, because Davis said nothing to Booth about the new
cast, despite the facts that Booth continued to wear it for the
next 3-1/2 weeks and engaged in no therapy. In addition,
when Booth received a bill from Diehl, he gave it to one of
the team’s secretaries, who said that Diehl should call the
Club and direct his bill there. Booth never paid that bill, and
I infer that the Eagles did.
(2) Nick Haden
Nick Haden, an offensive center and guard for the Eagles,
dislocated his left ankle and fractured his left fibula during
training camp drills on August 26. That evening, he was op-
erated on by Dr. DiStefano, who inserted a metal plate and
nine metal screws into Haden’s leg. On August 28,
DiStefano placed Haden’s leg in a soft, nonweight bearing
cast and released him from the hospital. DiStefano instructed
Haden to stay at home, get plenty of rest, keep his leg ele-
vated, stay off his leg at all times, fill a prescription for pain
medication, and see DiStefano in a week. Haden returned to
see DiStefano a week later. DiStefano dressed the wound and
placed Haden’s foot in a hinged cast, again one that was not
weight-bearing, but one that would permit Haden to flex and
extend his ankle. DiStefano advised him to return home and
to keep his leg elevated, but Haden could try to extend and
flex his ankle as much as he could.
Haden returned a week later, as requested, and DiStefano
removed the cast because of Haden’s discomfort and placed
his ankle in an Ace bandage. He once again instructed Haden
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to return to his home, not to put weight on his foot, and con-
tinue to do as much extension and flexing as he found com-
fortable. It was at either this visit or the one before that
Haden asked when he would be allowed to proceed with re-
habilitation or training, and DiStefano replied that Haden
could do nothing until the two large transverse screws had
been removed from his ankle, and those would not be re-
moved until 6 or 8 weeks after the initial operation. Haden
asked whether he could go to the gym to do upper body
weight training. Absolutely not, responded DiStefano, be-
cause Haden risked reinjuring his ankle.
Haden had the pins removed in an out-patient procedure
on Monday, October 12. Haden went to the striking players’
practice on Wednesday, after which he went to Veterans Sta-
dium to receive therapy and rehabilitation. There he saw
Davis, who volunteered his knowledge that the pins had been
removed and said that it was time for Haden to get himself
better. But Haden was escorted out of the training room by
George Azar, an assistant to Harry Gamble, the Eagles’
president and chief operating officer, because, he explained,
Haden had to meet with Gamble. And so Haden met with
Gamble, who said that Haden could use the Eagles’ facilities
for rehabilitation and therapy as long as Haden did not par-
ticipate in strike activities. Additionally, he would be paid for
that week because he had met the 1 p.m. Wednesday dead-
line. Haden returned to the training room, but was advised
by Davis that practice was to commence for the replacement
players and that no therapy or rehabilitation could be en-
gaged in without the presence of the trainers, who had to be
on the field. Haden left.
Haden did not return for therapy or rehabilitation the fol-
lowing day. Instead, he called Gamble to advise him that the
efforts of the Union, the strikers’ goals, were more important
to the game than Haden’s therapy and that he would go else-
where for his therapy. Gamble responded that Haden had for-
feited a week’s pay; and Haden replied that he understood.
So, Haden went to the physical therapists used by Dr.
DiStefano and finished at about noon or shortly before. In
his car, he heard that the Eagles’ striking players went back
to work, so he drove to the stadium. However, he saw no-
body there, and he went home.
Haden was paid for the first two games of the year, but
not for the canceled game or the three replacement games.
He remained on injured reserve for the rest of the season and
was paid for the remaining games. Prior to October 12,
Haden had received no instructions from anyone associated
with the Eagles other than to stay home, keep his leg ele-
vated, and extend and flex his ankle. On September 21, he
talked with assistant trainer David Price about where players
were going to get their therapy in the event of a strike. Price
replied that he did not know, but ‘‘not here.’’
(3) Dupre Marshall
Dupre Marshall, a free agent trying out for the Philadel-
phia Eagles, twisted his ankle in a practice session in mid-
August and, from then on, did not engage in practices which
involved physical contact. Instead, he did some light jogging
and took hot and cold whirlpool baths at the Eagles’ facility.
The Eagles placed him on the injured reserve list before the
opening regular season game, and Marshall received mas-
sages and continued to engage in his rehabilitation. On Mon-
day, September 21, the day before the strike commenced,
Marshall reported as usual to the Eagles’ facility and re-
ceived his whirlpool bath and massage. Word spread that
there was going to be a team meeting in the team room, and
Marshall attended it. He remembered Coach Ryan saying:
‘‘You guys go out as a team and you come back as a team.
We’re not going to let this tear us apart.’’
Later that morning, Marshall learned that Davis wanted to
see him. According to Marshall, Davis asked him where he
was going to be during the strike. Marshall answered: ‘‘Here,
receiving treatment.’’ Davis laughed, saying that he would
not receive treatment there, because he had directions for
Marshall to go to Paoli Clinic to receive treatment. Marshall
said that he guessed that his checks would be sent to his
hotel room, and Davis laughed again, asking Marshall that if
the other players were not going to be paid, what made him
think that he would be paid. Marshall then stated that he
thought that he would have to go home to San Francisco to
work out and receive treatment, because he did not have
enough money to stay in the Philadelphia area. Davis asked
where he would go, and he replied to his old school, the
University of California at Berkeley. Davis said that he knew
the head trainer, Bob Orr, that he was a good trainer who
would know what to do and would take care of Marshall,
and that Marshall should just continue to do what he had
been doing at the Eagles’ facility. Then Davis gave Marshall
the directions to the Paoli Clinic in case he decided to re-
main in the Philadelphia area and Davis’ business card in
case Marshall needed to call him for anything. Marshall
cleared out his locker, made reservations to go to San Fran-
cisco the next day, and left town.
Marshall testified that Davis never asked him whether he
was going on strike, and he never said one way or the other.
He returned to to Veterans Stadium in the morning on Satur-
day, October 17, and saw a few players who told him that
the players had been locked out. He returned on Monday and
resumed full practice. He was not paid for the canceled game
and the three replacement games.
(4) Other Eagles injured players; discussion
A blanket claim was interposed for eight other Eagles’ in-
jured reserve players: Martin Booker, Steve DeLine, John
Klingel, Ken Lambiotte, Mike McCloskey, Ron Moten, Alan
Reid, and Ben Tamburello. This claim was based in part
upon Coach Ryan’s speech to the players, before the strike,
that whatever they did, he wanted them to act as a team.
Later, he stated on television that the players had to do what
they had to do; but he did not want one or two players com-
ing across to play. Either the players crossed the picket line
as a team, or they did not cross.
Davis testified that he talked with all the injured reserve
players and all those who had injuries or were susceptible to
injuries or that needed follow-up care, some 12 or 14 play-
ers, and told them that they should not neglect their injuries
during the strike. He wanted to make sure that they did not
return from the strike in worse shape or that, when they re-
turned, they did not have to go through another 1 or 2 weeks
of rehabilitation in order for them to return to playing condi-
tion. Thus, if the players struck (he said that he told them
that the Eagles’ facility would be open), he gave them the
names of and directions to two facilities where they could re-
ceive medical care and rehabilitation.
119NATIONAL FOOTBALL LEAGUE
48 Booth testified that he never received this letter while he was
in California, but saw it for the first time when he returned to Phila-
delphia at the end of the strike.
49 In discrediting Davis, there are a number of other inconsist-
encies on which I rely, among which is his curious attempt to relate
all the exercises that Booth could have performed if only he had re-
ported to the Eagles’ facility during the strike. Immediately prior to
the strike, Booth was not required to do any of these exercises; and
it would be surprising that the Eagles would insist that Booth be-
come the ultimate physical specimen in light of the decision to re-
lease him as soon as he could manipulate his thumb. Furthermore,
Davis’ testimony directly contradicts the medical entry made by his
assistant trainer that there was not much that Booth could do to re-
habilitate more rapidly or effectively. After Booth returned from the
strike, he was not required to engage in the kind of rehabilitation
that Davis stated he should have engaged in during the strike. Rath-
er, he was virtually left alone until the cast was removed in Novem-
ber. Then, Booth started on a program to restore the motion and
strength of his finger, and he achieved the state ‘‘compatible with
playing football’’ in 12 days, when he was terminated.
Davis’ testimony was directly contradicted by a letter that
Gamble sent on September 22 to the injured players saying:
‘‘We have been advised that during the period of the strike,
Club facilities will not be available for treatment or rehabili-
tation.’’48 In addition, Davis’ testimony is contrary to what
Ryan had told his players, that he wanted all of them out as
a team, and he did not want one or two crossing the line.
Finally, in addition to some rather serious testimonial dis-
crepancies, Davis’ recall of these conversations was vague.
He could remember the general thrust of the conversations
but could recall no specifics. That might be understandable
if, indeed, he had similar conversations with the 12 or 14
players whom he said he had talked to; but his testimony
was specifically contradicted by those players who testified.
Furthermore, while Davis initially stated that he had the
same conversation with all the injured players, he later de-
nied talking with Haden. While initially denying that he
knew at any time that Booth went to California during the
strike, he later admitted learning that fact when Booth re-
turned from the strike.
Gamble testified that customarily all players are presented
with an itinerary prior to each football game, attached to a
pregame booklet which contains information pertaining to
that particular game, that sets forth all the players’ activities
leading up to the game, during the game, and after the game.
Normally, Tuesday is a day off for all Eagles’ players, but
those who require medical treatment or rehabilitation are re-
quired to report. However, the itinerary distributed prior to
the Eagles’ second game listed a team meeting for 9 a.m. on
Tuesday, September 22. That was done to enable him to de-
termine who was on strike. If the players did not report to
the meeting—and Gamble saw no player at the Eagles’ facil-
ity that day (Davis saw one player who came in to get some
things out of his locker)—they were on strike, so he thought.
That was bolstered by his observation of the players the day
before, removing their personal belongings from their lock-
ers. Because no one was there on Tuesday, he wrote to the
injured reserve players and others who were injured, instruct-
ing them where they could obtain medical attention and reha-
bilitation during the strike.
If he had merely written those instructions, I might have
no problem with the Eagles’ position, because the letter
would be consistent with the Clubs’ general position that the
injured players still had the obligation to rehabilitate them-
selves. But Gamble’s letter barred them from rehabilitating
at the Eagles’ facility, because he clearly stated that the Ea-
gles’ facility was closed and only the two other facilities
were open. Unless there were separate arrangements made
with the individual players, I find that the players met their
requirements to rehabilitate by going elsewhere. The Eagles
make no claim that any of these players otherwise failed to
comply with the requirement that they engage in rehabilita-
tion.
With respect to the individual claimants, I am persuaded
that separate arrangements had been made for Booth. He was
one of the players for whom the Eagles saw no future. The
team was going to waive him as soon as his hand healed.
It is natural that, having little interest in him, Davis would
have had no urgent opposition to Booth’s request to return
home to recuperate, but merely recommended that Booth go
to the Paoli Clinic. That Booth did not comply with the rec-
ommendation was not fatal to his claim, for the Club
impliedly consented to what he did. Assistant trainer Price
knew that Booth was going home. He wrote in his medical
report: ‘‘The player returned home for therapy. With this
type of injury, there is no major rehabilitation prescribed as
much as rest [and] active range of motion. This can easily
be performed at home.’’
Despite his denials, I infer that Davis must have been so
advised that Price was going home, either by Price or by
reading the medical report. Booth did not pay for his medical
expenses in California, but had them billed to the Eagles. Be-
cause there is no record that Booth paid the bill, it is most
likely that the head athletic trainer was consulted about the
payment of this bill and approved it.49 Finally, other than
going to the location recommended by Davis, Booth com-
plied in all respects with what his team required of him for
his rehabilitation. I conclude that the Eagles, by failing to
pay him for the canceled game and the three replacement
games, violated the Act.
Because I have little regard for Davis’ credibility, I have
no difficulty crediting Marshall. Marshall wanted to come to
the Eagles’ facility to rehabilitate and Davis laughed in his
face. Again, the players’ testimony that the Eagles’ facility
would be closed is corroborated by Gamble’s letter that
makes that very statement. Thus, I credit Marshall’s testi-
mony that he stated to Davis that, because he would not be
paid, he could not afford to remain in Philadelphia, and
would prefer to return home to rehabilitate, especially be-
cause the Eagles’ facility would be closed anyway. I also
credit his testimony that Davis did not oppose what he in-
tended to do. Davis’ failure to oppose Marshall’s wishes was
consistent with Coach Ryan’s plea to his players not to break
ranks and to remain on strike as a team. Therefore, Mar-
shall’s return to California did nothing to negate his obliga-
tion to rehabilitate or countermand Ryan’s wish that his play-
ers remain as a team. Otherwise, his benefit had accrued and
did not defease. I conclude, therefore, that the Eagles vio-
lated the Act by failing to pay Marshall for the four games.
Haden’s case is the easiest of all. Haden was incapable of
any rehabilitation during most of the strike, certainly for the
canceled game and for the first two replacement games. He
is clearly entitled to be paid for those games. He followed
the team doctor’s orders to the letter. Even Davis admitted
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
50 Challenge-Cook Bros., 282 NLRB 21 (1986), enfd. 843 F.2d
230 (6th Cir. 1988).
51 Harter Equipment, 280 NLRB 597 (1986).
that he had never given Haden any indication that he was to
report to the Club’s facility in order to be entitled to be paid.
When Haden first had the pins removed from his leg on Oc-
tober 12, he immediately reported to Davis for rehabilitation.
When he did, Gamble attempted to extract from him a type
of loyalty oath that he would not engage in any strike activi-
ties, which Haden not only refused to agree to but also had
a right to refuse. An employee may engage in protected ac-
tivities and also continue to work. As the Third Circuit con-
cluded in Emerson Electric v. NLRB, 650 F.2d 463 (1981),
it is still Board law ‘‘that an employee who pickets during
off-duty time cannot be regarded as a ‘striker’ against whom
an employer can act. . . . So long as the employee meets
the work commitment to the employer, the employer cannot
act against the employee for his or her off-time actions, or
Section 7 rights would merely be empty promises.’’ (At 474,
citing numerous Board decisions.) Accord: Firestone Tire
Co., 238 NLRB 1323 (1978), enfd. 651 F.2d 1172 (6th Cir.
1980). The Clubs’ reliance on Hoover Co. v. NLRB, 191
F.2d 380, 389 (6th Cir. 1951), to the effect that an employee
may not work and strike at the same time is accurate only
to the extent that an employee may not engage in boycotts
or other disloyal or disruptive conduct towards his employer.
NLRB v. National Furniture Mfg. Co., 315 F.2d 280, 284-
286 (7th Cir. 1963).
Accordingly, the conditioning of Haden’s return upon his
disavowal and abandonment of his Section 7 rights was ille-
gal, and he was entitled to be paid for the third replacement
game. In addition, Haden testified that he was present at the
Eagles’ facility on October 15 when the players made their
offer to return to work, and the Eagles, relying upon the ille-
gal rule, rejected their offer. For this reason alone, he is enti-
tled to be paid for the last game. I find that Haden is entitled
to be paid four game checks.
That leaves the rest of the Eagles’ injured reserve players,
none of whom testified. However, I have already concluded
that injured reserve players have accrued benefits, and the
burden is on the Eagles to prove under Great Dane that it
had a reasonable justification for withholding payment to
these players. I find no such justification. The only reason
given is that the players did not show up for the meeting
with Gamble on September 22, an indication that they were
on strike. The players were not being required to perform
any meaningful function to rehabilitate or to learn their posi-
tions or to learn the tactics for the upcoming games. The sole
purpose of the meeting, as explained by Gamble, was to de-
termine who was supporting the strike. The scheduling of the
meeting served the same function as a telephone call to each
of the injured players asking them whether they were on
strike or how they felt about the strike. I have concluded
above that the injured reserve players were entitled to ex-
press their sympathy with the strike because their benefits
had accrued and they could not play in any event.
Furthermore, the Eagles sent the injured reserve players no
clear signal that they were expected to cross the picket line
and rehabilitate at the Club’s facility. I have already discred-
ited Davis, who I believe would have relayed a message con-
sistent with what Ryan told the players and consistent with
what Gamble wrote to the players. That message was that the
players were to stay together as a team. After all, at some
point the strike would end, and Ryan took the calculated risk
of encouraging the players to stay away from work in the
hope that, when they returned, they would be a winning
team. Gamble’s letter ensured that Ryan’s objective would be
enforced. The Eagles’ facility was closed to the injured re-
serve players, and their only option was to be rehabilitated
at one of the two facilities named in Gamble’s letter.
There has been an utter void of proof that the players
failed to comply with their commitments to rehabilitate. I
find that the Eagles illegally failed to pay game checks to
all these players, with the exception of Ron Moten, for the
four games, played and unplayed, during the strike. Moten
reported on October 12 and began his rehabilitation then. He
was paid for the last game and is entitled to be paid for only
the canceled game and the first two replacement games. That
Moten reported to work and was accepted for rehabilitation
during the strike does not alter my conclusion about the other
players. The Eagles simply may have changed their position
when Moten reported or Moten gave in to illegal demands
that he give up his Section 7 rights. In any event, Ryan’s ex-
hortation to his players and Gamble’s letter stating that the
Eagles’ facility was closed were never rescinded. The players
were entitled to rely on what appears to be the Eagles’ pol-
icy.
The complaint alleges that this constituted a lockout. A
lockout traditionally is used to bring economic pressure to
bear in support of the employer’s bargaining position50 and
occurs when an employer prevents his employees from enter-
ing his facility so that they can continue to work and earn
a living. Here, to the contrary, the benefits of the injured
players had accrued. As held above, the Eagles violated the
Act by not paying them. All that happened was that the play-
ers were told to go to a different facility, at the Eagles’ ex-
pense, in order to receive their rehabilitation. There was no
adverse effect on the employees’ protected rights.51 There
was no lockout, and I will recommend that the allegation of
a lockout be dismissed.
h. Larry Emery Jr.
Part of the dispute regarding Larry Emery Jr. is somewhat
different from all the rest of the injured reserve players. Al-
though Emery, a first year running back for the Falcons, was
placed on injured reserve as a result of an ‘‘injury’’ suffered
during the first week of the regular season, one of the Fal-
cons’ defenses is predicated on the fact that Emery suffered
no football injury. Rather, the Club contends that his status
as an injured reserve player was the result of an inadvertent
administrative error, that it was not immediately known what
caused Emery’s physical problem, and that he should have
been placed on the reserve list for nonfootball injuries or ill-
nesses (NFI). If that is how he should have been treated, the
Club had no obligation to pay him at all.
During practice on Thursday, September 10, Emery no-
ticed a numbness and coldness of his left arm. He reported
the condition to the head athletic trainer, Jerry Rhea, who
told him to sit out the rest of practice that day. The team
physician, Dr. Charles Harrison, examined Emery later and
found that he had no blood pressure or pulse in his arm. He
was taken to the hospital, where he was examined by Dr.
Daniel Jordan, a vascular surgeon, and admitted into the hos-
121NATIONAL FOOTBALL LEAGUE
pital. The next day Jordan operated on Emery and removed
blood clots from his shoulder and lower arm.
The General Counsel argues that, no matter what the ac-
tual cause of Emery’s condition was, the Falcons made the
assessment that he was to be treated as an injured reserve
player. Indeed, the Falcons had ample opportunity to correct
what is now alleged as an inadvertent mistake. After the
Club had orally advised the NFL on September 11 that it
was placing Emery on the injured reserve list, which was
telephoned to the NFL office prior to Emery’s surgery that
evening, it was required to send in a formal written notice,
which was prepared after the surgery and still showed that
it was treating Emery as having a football-related injury and
not one that was unrelated to football. Furthermore, except
for the period of the strike, which coincided with the period
that Emery was not reporting for work, the Falcons paid him.
Nonetheless, when the Falcons received the surgeon’s bills,
it turned them in for payment by Emery’s insurance com-
pany, because the services were rendered in connection with
a nonfootball incident. If the team thought that it was actu-
ally football-related, it would have paid the bill itself as a
workmen’s compensation injury, for which it was self-in-
sured.
Dr. Harrison’s notes of his examination of Emery on Sep-
tember 10 state: ‘‘Left arm went numb today after he hit
somebody.’’ That would indicate that the numbness was
caused by the playing of football and the blow, however
slight, that he suffered in hitting someone. However, Har-
rison discounted that there was a trauma to the artery by ex-
amining the films of the practice, which showed that there
was no traumatic injury. But he also opined that, whether
Emery hit someone or did not, he had previous blood clots
in the area of his left arm which were bound to break off
and obstruct an artery, whether in practice or when Emery
rested or when he slept. The clots were formed because
Emery had an extra rib (a cervical rib) on his left side, a
congenital defect which caused his subclavian artery (behind
the collarbone) to override the extra rib, to thicken, and to
result in an obstruction. The surgery that was performed in-
cluded the removal of Emery’s extra rib, as well as the two
clots which Dr. Harrison testified broke off from the main
point of the obstruction and lodged in Emery’s shoulder and
above his elbow.
The General Counsel did not refute this medical testimony.
I, therefore, find that the fact that the incident occurred on
the playing field during a practice was a mere coincidence,
and the clotting could have taken place at any time. It was
not an injury which would have required that Emery be
placed on the injured reserve list, which is for injuries result-
ing from football. This record persuades me that his injury
did not result from the playing of football.
However, this is not to say that the Falcons were similarly
persuaded. Rather, with one exception, the Club appears to
have taken the position, without even thinking more about it,
that Emery was injured because of his activities on the play-
ing field. That prompted the Club to place him on injured
reserve, a designation that was never removed by the Club
during the season although it had ample opportunity to do so.
In fact, this claim suffers from the same kind of infirmity
that caused me to find an unfair labor practice in the prin-
cipal claim in this proceeding. No one testified on behalf of
the Falcons other than the doctor and the trainer, who added
nothing to this part of the claim. While I have found that
what Harrison said might well have been a legitimate reason
for the denial of benefits to Emery, there is an utter lack of
proof that the Falcons relied upon what Dr. Harrison testified
to in this proceeding and denied Emery his benefits for that
reason. Instead, the record reveals nothing more than an at-
tempt to make amends for the alleged commission of a viola-
tion of the Act by contending that, if the Club had known
the real reasons for Emery’s condition, it would not have
violated the Act, a lame, belated, pretextual excuse. The
8(a)(3) violations are based on a respondent’s actual motiva-
tion, not a theory later interposed about what it would have
done if only it had all the information it now possesses.
Nonetheless, I will recommend dismissal of this claim.
After the surgery, Emery was released from the hospital the
following Tuesday. Jordan told him to engage in no activities
and to return to see him in a week. Harrison told him that
he should not do anything but ‘‘stay rather quiet.’’ Emery
decided to recuperate at his parents’ home in Macon, Geor-
gia. Before traveling there, he stopped by the Falcons’ facil-
ity where Coach Marion Campbell told him that he could
leave Atlanta and take his time in recuperating.
Instead of returning the next Tuesday for his scheduled ap-
pointment, Emery returned to the Falcons’ facility on Mon-
day, the day before the strike, ‘‘to see what the situation
was.’’ Rhea was handing out letters and gave one to Emery,
telling him that there was a possibility that a strike was
going to occur and, quoting Emery’s testimony, ‘‘if you were
to become a striker or going on strike these were places to
go if you didn’t come to the complex.’’ Although Emery at-
tempted to change this testimony, I find that this is exactly
what he understood: If he were to strike, he did not have to
rehabilitate at the Falcons’ facility.
The reason why I am not inclined to permit him to change
his testimony is that I believe little of the rest of it, particu-
larly his claim that, after the surgery, he never saw Harrison,
the team doctor. Harrison, however, had extensive notes of
his examinations of and talks with Emery during the course
of Emery’s recovery and testified that, because Emery was
traveling from Macon, he and Dr. Jordan, whose office was
next door, were trying to see Emery on the same day. I cred-
it Harrison completely. Thus, I find that the day after Emery
went to the Falcons’ complex, the first day of the strike, he
saw Drs. Jordan and Harrison. Jordan removed the stitches
in Emery’s lower arm, cleaned the still open wound in his
shoulder, and told him to return in 2 days. Harrison encour-
aged Emery to return to his running program.
Emery testified that, when he saw Jordan 2 days later, Jor-
dan told him that he was doing better so he could engage
in limited activities, but ‘‘[n]o football, no running or no lift-
ing at all.’’ Jordan scheduled Emery for a new appointment
in approximately 2 weeks, which would have been in Octo-
ber. However, Harrison testified that he saw Emery again on
September 28, and Emery reported to him that he had seen
Dr. Jordan the preceding week and that he was told that he
could engage in some weight lifting. Emery reported to Har-
rison that he had been running and riding a bike, too. Har-
rison then advised Emery that he could do anything that he
wanted to do, with increased running and lifting, and in-
structed him to see Jordan and to return in 2 weeks.
According to Emery, when he returned to see Dr. Jordan
(probably a week or less earlier than Dr. Harrison’s records
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
show that he examined Emery), his incision in his shoulder,
which had closed in the interim, had reopened and was
bleeding again. Jordan had to reopen the wound, clean it, and
resuture it. Emery testified that Jordan forbade Emery from
engaging in any activities until the wound healed perfectly.
Dr. Harrison’s testimony, supported by his records, was
vastly different. He saw Emery on October 9, and Emery
told him that he had been doing all the things necessary to
prepare him for contact football—running, bike riding, and
weight lifting. He reported that he had seen Dr. Baskin, Jor-
dan’s associate, 2 days before and that he had removed a lit-
tle stitch. To Harrison, the drainage had stopped and Emery
was doing well and could continue to do whatever he felt
like doing. That included working out with the regular team,
still on strike. Emery was very anxious to do this, and Har-
rison had no objection, knowing that the team was working
out in shorts and was not engaged in contact.
In sum, during the entire strike, Emery was physically able
to engage in rehabilitation and, in fact, did so. He was never
told that the Falcons’ facility was closed to him, and he was
not advised that he could do nothing. To the contrary, he
knew that if he were to strike, there were other facilities that
were open for his use; and his choice of not returning to the
Falcons’ training room was his fault, and no one else’s. In
addition, he did not return to the Falcons’ facility before the
third replacement game, and there was no reason given for
his failure to return. For these reasons, I find that he was not
entitled to be paid and conclude that the Falcons did not vio-
late the Act.
i. James Geathers
James Geathers, a defensive end for the Saints, fractured
his patella and tore ligaments in a preseason game held on
August 29. He underwent extensive surgery on September 1
to reconstruct his left knee and was placed in a plaster cast
from his hip to his toe. He was released from the hospital
on September 5, with instructions from Dr. J. Kenneth Saer,
the Saints’ team doctor and orthopedic surgeon, to keep his
leg elevated and return to Saer’s office in 2 weeks to have
the cast removed. On September 15, the plaster cast was re-
placed with a leather strap brace which limited Geathers’
mobility in extending his leg; and Saer advised that Geathers
could begin active motion of his leg by bending his knee
from 45 to 90 degrees in order to break the scar tissues. An-
other appointment was made for September 29.
Geathers did his stretching exercises each day. He was
able to do no more than two sets because of the pain, and
each set took about 5 minutes. On September 21 he went to
the Saints’ facility and conferred with Dean Kleinschmidt,
the Saints’ trainer, who, according to Geathers, asked wheth-
er Geathers was going to participate in the strike. Geathers
said that he had not yet made up his mind, but thought that
he might like to receive his treatment in the morning and
picket in the afternoon. Kleinschmidt stated that it was the
team’s policy that, once a player crossed the line, he stayed
across, meaning that a player could not come to the facility
and picket. A player had to make a choice—he could strike
and picket outside or he could do his exercises in the facility,
but he could not do both. Although Kleinschmidt denied
most of this testimony, which is consistent with the instruc-
tions of the Management Council’s September 18 memoran-
dum, he agreed that he made the last statement.
Geathers went for a treatment that day. The staff looked
at his wound and cleaned it. They supervised his leg lift ex-
ercise, in which Geathers, lying on his back, lifted his leg
without bending his knee. He also worked out on an
orthotron machine, which is a hydraulic resistance rehabilita-
tion device. The trainers applied ice to his leg to relieve the
pain and inflammation that usually accompanied that exer-
cise. He was there for a half-hour, and the trainers cleaned
his wound and applied ice to it to bring the swelling down.
At no time did he watch films or attend practices.
Geathers refused to commit himself to any action, but,
when the strike commenced, he was, although immobilized,
on the picket line with the striking players, on six occasions,
including September 22. On October 1 he saw Saer again,
who adjusted his brace so that he could bend his leg a little
more. He rehabilitated at a center which was affiliated with
the hospital where he had his surgery. When the striking
players decided to return to work, Geathers was with them;
and they were told that they could not return because they
had missed the Wednesday reporting deadline and because
the players were not ready to play and might get hurt. He
asked James Finks, the Saints’ president and general man-
ager, whether he could start his rehabilitation in the facility,
the Saints’ facility being much closer to Geathers’ home than
the hospital. Finks said no. Geathers asked why he could not,
because he could not play anyway and because Finks had
been contending that the players were not ready to play and
might get hurt. Geathers returned the following Monday, Oc-
tober 19, and commenced his rehabilitation that day, and
continued to rehabilitate at the Saints’ facility for the rest of
the season. Geathers was not paid for the canceled game and
the three replacement games. He remained on injured reserve
until just after Christmas, healing more quickly than Saer’s
original prognosis that Geathers’ season was finished.
There is some factual dispute whether Geathers returned to
the Saints’ facility no earlier than September 21, as he testi-
fied, or whether he returned the day after his cast was re-
moved, which would be about a week earlier. Kleinschmidt
testified that he remembered seeing Geathers at the facility
the preceding week. He said that his records showed that
Geathers was present because they no longer noted that he
was at home, as the records for his earlier recovery period
show. Instead, they show that he was in a splint. Further-
more, in order to start the orthotron exercise, it was cus-
tomary that the patient first performed straight leg lifts with
light weights (2-1/2 pounds) and also rode an exercise bicy-
cle. Kleinschmidt recalled that Geathers did both of these ex-
ercises the week before the strike. Finally, the doctor noted
when he removed Geathers’ cast that he could start to do
some light lifting.
On the other hand, the exercise forms do not indicate that
Geathers did any exercise that week, despite the fact that
Kleinschmidt admitted that the trainers would have been in-
terested in the progress he was making, in other words, how
many repetitions he was doing and with what weights, data
that, I find, someone would want to record and not trust to
memory. However, I was impressed that Geathers overcame
a serious season-ending injury and rehabilitated with such
diligence that he returned before the season ended. It seems
to me that Geathers would have lost no time in beginning
his therapy, and I find that he returned to the Saints’ facility
as soon as he could and thus as early as the Saints contend.
123NATIONAL FOOTBALL LEAGUE
Geathers was told on September 21 by either Finks or an-
other representative of the Club, that injured reserve players
could strike, in which event they would not be paid; or they
could continue to receive treatment in the Saints’ facility, in
which event they would be paid. Geathers was clearly aware
that he had made a choice by going out on strike. He con-
ceded: ‘‘I know I wasn’t going to get paid because they said
that before the strike started. . . . [I]f you strike, you’re not
going to be paid.’’ But the choice he made was only after
being told by Kleinschmidt that Geathers could not both re-
ceive treatment and strike. That, as I concluded in the discus-
sion of the Haden allegation (above), misstates Board law.
Geathers was entitled to continue his rehabilitation in the
Saints’ facility and to continue his support of the strike.
Kleinschmidt prohibited him from doing so. The Saints argue
that Geathers was picketing during regular work hours and
so he should not be entitled to his benefits. However, the
Club prohibited him from his normal rehabilitation unless he
waived the right to engage in picketing. He was, therefore,
was entitled to support the strike at his pleasure.
By illegally conditioning Geathers’ access to the training
room facilities, the Club may not rely upon his failure to
cross the picket line to receive his rehabilitation. He was en-
titled to support the strike. That being so, the Saints did not
meet its burden to prove under Great Dane that they had a
valid justification to refuse to rehabilitate Geathers.
j. Chris Godfrey
Chris Godfrey, an offensive guard for the Giants, suffered
a knee injury, a medial collateral ligament sprain, during the
team’s second regular season game. He was taken on a cart
from the field and driven to the locker room, where the train-
er put a Jobst ice boot on his left leg. The boot is filled with
a cold fluid and applies even pressure to the leg. The next
day, Monday, the swelling of his knee had increased dra-
matically. Trainer Barnes gave him another treatment with
the boot and then sent him to get a magnetic resonance im-
aging (MRI) examination in New York City. Upon Godfrey’s
return to Giants Stadium in New Jersey, Barnes instructed
him to report to the Meadowlands Professional Sports Care
clinic the following day, which was the first day of the
strike.
Godfrey was placed on injured reserve on September 25,
after the strike commenced. His benefit, therefore, had not
accrued at the time of the strike; but, of course, it became
accrued once the Giants placed him on the injured reserve
list. Godfrey received a variety of treatments at the clinic
there for the remainder of the week and daily, excluding
some Saturdays and Sundays, until October 16. He rode an
exercise bike and received the ice boot. He also exercised in
an Aqua Ark, a large tub of water in which the patient is
suspended and can perform exercises without putting any
body weight on the injured leg. Although most of his earlier
rehabilitation was supervised by James Madaleno, one of the
Giants’ assistant trainers, he was also seen and consulted
from time to time by Barnes and team doctor Warren, who
also had a financial interest in the facility.
At the conclusion of his rehabilitation workout on October
16, Godfrey, noting that the strike was over, asked Barnes
whether he wanted him to report to the clinic again on Mon-
day. Barnes told him to report to Giants Stadium and from
that point Godfrey did. The workouts were almost identical.
Madaleno supervised his treatment that Monday. The only
treatment that was unavailable at the stadium was the Aqua
Ark, but by that time Godfrey was able to put full weight
on his legs.
Godfrey was not paid for the canceled game or the three
replacement games. No one questions the facts that he never
announced to anyone that he was on strike or that he was
not on strike. The salient factual issue arises in Barnes’ testi-
mony that, the day before the strike, Godfrey asked ‘‘where
are we supposed to go for treatment?’’ and Barnes replied
that he had made arrangements ‘‘for striking players’’ to go
to the clinic. Godfrey said that nothing was mentioned about
the strike at all. I discredit Barnes’ narration for two reasons.
First, he tried to limit his role in caring for Godfrey, but I
am persuaded that Godfrey’s detailed notebook that he kept
of his treatments accurately reflected that Barnes tended to
him often during the strike. Because the Management Coun-
cil had directed that trainers were not to administer treatment
to strikers outside the team’s facility, Barnes must have
known or thought that Godfrey was not a striker. Second, I
found that Godfrey was too involved with his own injury to
care about anybody else, as evidenced by his notebook, and
would not have asked where others were to go for their reha-
bilitation. He would have asked only where he was to report.
He knew that the strike was going to occur by the following
day; and that obviously was the reason for his question.
Barnes assumed that Godfrey, a starter, would not cross
the picket line (Coach Parcells had asked all the players to
remain together) and instructed him to report to the clinic.
He clearly never offered Godfrey a choice, such as, if you
are going to be on strike, go to the clinic, but if you are not,
come to the stadium. Nor did Barnes tell Godfrey prior to
October 16 to report to the stadium. Accordingly, I find that
Godfrey did exactly what he was told to do in order to re-
ceive his rehabilitation. I conclude that the Giants violated
the Act.
k. Mike Hamby
Mike Hamby, a defensive end for the Bills, was operated
on for a recurrent ailment in his right hip on September 11.
When Hamby was released from the hospital on September
16, Dr. Richard Weiss, the team doctor, told him to go home
and rest and stay off his leg, which he did. That is about all
that the principal witnesses agreed on. Between Bill Polian,
the Bills’ vice president for administration and general man-
ager, who was very confrontational, failing to answer ques-
tions which were capable of answering, and was often incor-
rect in his recollections, and Hamby, whose story partially
made little sense, it is not particularly easy to reconcile the
testimony, but the following is most probable in the cir-
cumstances.
On Tuesday, September 22, Hamby attended a meeting of
the players, called by the union representative, followed by
a brief meeting of the team’s injured reserve players with
Polian, at which Polian said that he was going to pay the in-
jured reserve players, but they had to come to the stadium
to receive their therapy. (Polian testified that he held an ear-
lier meeting with the injured players the day before, but I am
persuaded that Hamby did not attend it.) During the 12 days
from the time of Hamby’s surgery to the Tuesday meeting,
he had not come to the stadium to receive any treatment. In-
stead, he had followed Dr. Weiss’ instructions and stayed
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
home. After all, he had a 10–12 inch incision and staples in
his hip; and Polian’s initial account that Hamby was well on
the way to full recovery, that he was capable of running, that
he ran every day, and that he was capable of performing his
rehabilitation schedule which had been set up for him and in-
cluded running, weight lifting, and resistance exercises was
clearly inaccurate, as Polian later admitted. Nor do I believe
Polian’s later testimony that Hamby was ambulatory and had
no need of crutches, contrary to Hamby, who testified that
he needed crutches and was consistently advised that he must
stay off his feet and do only so much as he needed to get
around his apartment.
Common sense would indicate that with such a massive
wound, held together by staples, Hamby was not nearly in
as good shape as Polian said. In addition, Weiss did not tes-
tify nor did the Bills introduce any medical records which
would indicate that Hamby was well enough to do anything.
When Polian announced that the injured players were re-
quired to cross the picket line to receive their therapy, that
condition constituted a change in the team’s rules as they
pertained to Hamby solely because of the occurrence of the
strike and for no legitimate purpose. Up to the strike Hamby
was not physically able to engage in any form of rehabilita-
tion and did not do so; nor was he required to do anything.
Further, I find that, in any event, Hamby did exactly what
was required of him by the team doctor, who is normally the
person who makes decisions on health care for all the Clubs.
When Polian announced that therapy would be available at
the Bills’ stadium, Hamby asked Dr. Weiss, who also at-
tended the meeting, what he was supposed to do. Weiss said
that he needed to go home and rest, not do any exercise, and
stay off his leg, but he could do whatever he could to get
around the house. Weiss added that he could not possibly
come back for rehabilitation and might do himself some
harm by doing so.
Nonetheless, Hamby returned to the stadium the next day
to complain that he was being treated disparately from his
roommate, Hal Garner. Polian said that Garner could not
even come into the facility, but Hamby could; and that
Hamby should do whatever he could, like other injured re-
serve players, such as attending practices. Because there were
no practices that day, there was nothing for Hamby to do,
and he went home. But he was fearful that he was going to
lose too much money. He returned before the deadline on the
Wednesday before the third replacement game. He spoke
with Dr. Weiss, who said that there still was no therapy or
rehabilitation that Hamby could engage in, but that Hamby
could go to the team meeting and watch practice, which he
did.
There is nothing in this record that indicates that attending
meetings and watching practices are not part of the therapy
to be engaged in by injured reserve players, even when they
could not engage in therapy or rehabilitation. Much of this
is hardly to the point. Prior to the strike, Hamby was still
recuperating and was never required to attend practices or
film sessions or get his therapy at the Bills’ facility. It was
only the event of the strike that spurred Polian’s direction,
which was consistent with the Management Council’s memo-
randum of September 18, that the injured reserve players had
to alter their regimen and henceforth report to the facility.
Why it was not necessary for Hamby to report the day before
the strike but necessary for him to report when the strike
began was not explained, and it was the Bills’ burden to sup-
ply that explanation. Its failure to do so is critical, because
it had that burden under Great Dane. Accordingly, if there
were no other defense interposed, I would conclude that the
Bills violated the Act by failing to pay Hamby three pay-
ments.
The Bills contend, however, that Hamby waived his claim
to these payments. On October 28 he signed an agreement
to defer his salary to 1988. That agreement was a form
agreement, the purpose of which was ‘‘to amend the pay-
ment schedule for compensation that may be earned under’’
Hamby’s original contract. It had four columns on it which
were filled in, the first two being the week number and gross
salary for that week, followed by two columns for the gross
to be paid currently and on January 15 in the next year.
Hamby signed an agreement which required payment in 1987
of $6250 for the first 2 weeks of the season, as well as the
last replacement game (game 6) and the first game (game 7)
played by the returning strikers. Next to weeks 3, 4, and 5,
however, was the word ‘‘strike’’ and the gross salary for
each of those weeks stated ‘‘0.’’
Polian also signed this agreement, but there was no testi-
mony elicited as to how the document came into being, other
than the fact that Hamby came to the Bills’ office and asked
for it and that it was prepared by a secretary. There was no
discussion about whether Hamby was entitled to his salary
during the strike, nor does there appear to be any evidence
that he had any dispute about whether he was entitled to it.
Indeed, the document was introduced during the examination
of Polian, but I have no doubt that the General Counsel was
aware of it at the time that Hamby testified, because the
General Counsel had subpoenaed all the relevant documents
and raised no issue of his lack of knowledge when it was
offered in evidence.
The effect of the deferral agreement was to decrease his
gross salary by $18,750, the amounts which would have been
due to him for the canceled game and the first two replace-
ment games, which I have found he is entitled to because of
the Bills’ unfair labor practice. In somewhat different cir-
cumstances, the Board in Ideal Donut Shop, 148 NLRB 236
(1964), enfd 347 F.2d 498 (7th Cir. 1965), that backpay is
a remedy which the Board provides in the public interest to
enforce a public right, and ‘‘No private right attaches to a
discriminatee which he can bargain away or compromise
. . . .’’ Id. at 237; see also Clear Haven Nursing Home, 236
NLRB 853, 855 (1978) (‘‘[T]here is an overriding public in-
terest in the effectuation of statutory rights which cannot be
cut off or circumvented at the whim of individual
discriminatees.’’) (Footnote omitted.) I am loath, therefore,
on this record, to cut off Hamby’s statutory rights merely be-
cause he signed a deferral agreement.
Furthermore, there is nothing in this record that Hamby
had any understanding that he had any legal right and that
he was waiving anything. A waiver is a deliberate relinquish-
ment of a legal right. Johnson v. Zerbst, 304 U.S. 458, 464
(1938). It is impossible in these circumstances to determine
whether he intended to waive anything, especially because
there appeared to be no consideration for his waiver. In all
the circumstances, I conclude that the better course here
would be to order the Club to make the payments to Hamby,
subject, however, to its right to contest in the compliance
proceeding the validity of the purported waiver and subject
125NATIONAL FOOTBALL LEAGUE
also to the right of Hamby to choose to refrain from receiv-
ing the backpay award due him after final determination of
his rights has been made.
l. Jets
(1) Jeff Price
Jeff Price, a wide receiver for the Jets, injured his back
during training camp on August 6. His initial treatment of ice
and heat did little good. Associate team doctor and ortho-
pedic surgeon, Dr. Elliot Hershman, ordered him to have an
MRI and a CAT scan and, finally, the Jets put Price in a
hospital on August 15, where he stayed in traction and un-
derwent therapy for about a week and one-half. When Price
was released from the hospital on August 26, Hershman told
him that the traction and therapy were not doing him any
good. Instead, he prescribed bed rest which Price could do
at home, because he did not want Price up and about walk-
ing back and forth to training camp. Hershman wanted Price
to come back in 4 weeks to be reexamined by him and the
two other doctors who had followed his progress at the hos-
pital. Price returned to the training camp and saw the Club’s
head athletic trainer, Robert Reese, who delivered the same
instruction for bed rest as did Hershman. Price went to his
fiancee’s sister’s home in Atlanta on August 27.
On September 22, Price called Reese and told him that he
was concerned that the strike would affect his pay. Reese
said that it would if he were on strike and that it was up
to him to determine whether he was on strike. Price testified
that Reese told him that, to be paid, he would have to resign
from the Union and that Price should contact his player rep-
resentative to find out how to go about resigning. Reese said
that he would have to submit a letter of resignation to the
Union. Price asked whether Reese still wanted him to come
to New York to see the doctors, as Dr. Hershman had in-
structed him to do 4 weeks before. Reese said that since
Price was a striking player, he was not allowed on the facili-
ties of the Jets for any type of therapy or anything. Price did
not deny that he was a striking player.
Because Reese seemed unsure of what Price had to do,
Price called Steven Gutman, then the administrative manager
(and at the time of the hearing the president) of the Jets,
whose telephone number Reese had given him. He also
asked Gutman whether the strike would affect his pay, and
Gutman also replied that it would if he were on strike. Just
as in his conversation with Reese, Price did not say that he
was not on strike; nor did he ever at any time tell anyone
associated with the Jets that he was not on strike. Price also
asked Gutman what he would have to do in order to be paid.
Gutman answered that Price would have to resign from the
Union, and that the decision was his.
About a week later, Price again called Reese to get more
information about how to resign. Reese referred him to
Gutman who said that, if Price decided to resign, he should
send the letter overnight to the Jets and a copy to the Union.
About 2 days later, Price called Gutman, again to find out
more information about resigning. Gutman replied that he
had already given him that information and had told him
what to do, and that he was tired of Price calling. He hung
up. Still persistent, Price called Gutman again the next day
and asked whether the Jets would put in writing that the
team was obligated to pay him all amounts due under his
1987 contract. Gutman said that he would not.
On October 6, with the permission of the Jets, Price went
to get an opinion from another doctor, who recommended
that he undergo a myelogram. He later consulted with Dr.
Hershman, who agreed that Price should have the procedure,
but he wanted it performed in New York under the super-
vision of the Jets’ doctors. Price underwent the procedure on
October 20 and, on the advice of Dr. Hershman to continue
bed rest and to go home, within a day or two returned to
his parents’ home in Virginia. He remained there for about
2 weeks and then returned to Atlanta. Price never returned
to the team’s facility during the entire 1987 season, nor was
he asked to return, for therapy, rehabilitation, or attendance
at meetings, film sessions, or practices.
The principal claims of the Jets are that Price never denied
that he was on strike, that he admitted that he was on strike
during the entire period of the strike, that he notified Reese
in late September or early October that he intended to remain
on strike, and that he refused to keep appointments with
three doctors during the strike. The first three reasons, even
though factually accurate, as a matter of law, have no signifi-
cance. The failure to deny that he was on strike does not in
these circumstances result in the conclusion that he was on
strike. Price was not well enough to be on strike. He could
do nothing and had been sent home because he could do
nothing. His recuperation was based on a program of rest for
his ailing back, and there were thus no services that he could
withhold as a striker. His statements that he was on strike
were merely indications that he supported the strike and that
he would have withheld his services if he could have per-
formed those services.
The more serious contention is that Price had the duty to
cooperate to the best of his ability in the course of his reha-
bilitation, and the question, therefore, is whether he willfully
refused to keep scheduled appointments. Accepting for the
sake of argument the Jets’ testimony, I find no factual sup-
port that the Club relied upon Price’s failure to return to
New York 4 weeks after his discussion with Dr. Hershman.
Rather, the Club’s emphasis for denying him his pay was
that he refused to resign from the Union, notwithstanding the
denials of Reese, Gutman, and Pepper Burrus, the assistant
trainer, that Reese and Gutman asked for Price’s resignation
and their testimony that they only asked Price whether he
was on strike or not. Burrus kept detailed and copious daily
logs which confirm that resignation was the key to Price’s
being paid. Burrus’ log states that Reese explained to Price
on September 22 that he had to declare whether he was in
the Union or not and what Price had to do in order to resign
from the Union. Price was concerned then, and continued to
be concerned throughout the strike, with being paid, particu-
larly if his back injury continued and the Union would no
longer represent him. Reese then gave Price the telephone
number of the Jets’ player representative and told him to
check about how his membership would affect his rights to
continue to receive his pay. In the meantime, if Reese did
not hear further from Price, he would assume that Price was
‘‘still in union and on strike.’’
On September 29, Burrus recorded that Price called to ask
what to do to resign from the Union because he needed his
pay and did not think that the disputed subjects which led
to the strike would benefit him. Burrus told him to write the
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
letter to the Union and the Jets and send it overnight to be
received by the Jets in time for the (then) Friday deadline.
The request that the letter be sent to the Union supports my
finding that the Jets were looking for Price’s resignation. If
all the Jets were looking for was a simple declaration that
Price was not on strike, there would have been no reason for
him to send a letter to the Union. The following day, Burrus
wrote that Price again called and asked how to resign from
the Union and if he could still have injury protection. Burrus
told him that he would maintain injury protection. (I note
that Burrus never said to Price that he did not have to resign
from the Union in order to maintain his injury protection or
to signify that he was not joining the strike.) On October 1,
Burrus recorded his conversation with Gutman, who told
him, according to Burrus’ testimony, that he had heard from
Price and that he had not yet stated his position as to wheth-
er he was on strike or not. Yet Burrus recorded in his notes
that Gutman reported that Price had not resigned from the
Union and that it was in his lap to do as he wishes.
Burrus testified that, when he wrote ‘‘resignation’’ in his
log, that was only an impression that he received, but the de-
tailed picture presented by his log in no way constitutes a
one-time ‘‘impression.’’ His explanation at the hearing was
unbelievable and concocted. Burrus had no difficulty using
the English language to express himself, and his notes were
not fabrications of the contents of his telephone conversa-
tions with Price or his conferences with Reese and Gutman.
Rather, I find that someone explained to him what might be
involved by his repeated use of the word ‘‘resign’’ and that
he tailored his testimony in this proceeding to benefit his
employer, the Jets, as evidenced by his realization, ‘‘[W]ow,
I shouldn’t have used that word.’’
Burrus was willing to say anything to protect his training
department and was especially antagonistic to Price, who, he
believed, was not showing the kinds of physical or neuro-
logical objective symptoms that supported his complaints of
back pain. Although Burrus later denied it, he was seeking
to create the impression that Price was malingering and was
not seriously injured. Under some pressure, Burrus finally
admitted that back ailments are very difficult to diagnose
and, even without physical evidence, a person may nonethe-
less suffer greatly with a sore back. In addition, the Jets
sought to create the impression that Price was lying when he
testified that he was diagnosed as having either a herniated
or bulging disc. There is sufficient support in the record that
he was amply justified in believing that he had such a condi-
tion.
Reese denied that he told Price that he had to resign.
When Price asked how he could be paid, Reese said that
Price ought to declare that he was not on strike and that, in
order to protect himself from disciplinary action by the
Union, he should think about resigning from the Union.
Reese’s explanation about resigning makes little sense. First,
he testified that he was instructed to tell the players about
the option of resigning only if asked. Here, however, Price
never asked; but Reese still said that he mentioned the op-
tion. Second, Price was at home. Obviously, he was not
crossing a picket line. Because Reese’s only requirement was
that he write a letter, there was no chance that the Union
would find out that he had declared himself opposed to the
strike.
Third, the Jets’ insistence that a letter be sent to the Jets
demonstrates that the subject of the letter had to be about
resignation, because the Union would have to be informed of
Price’s decision. There would be no reason for any player to
advise the Union of his decision not to support the strike, a
notification that might result in the type of disciplinary action
that Reese was warning Price about. Finally, Reese admitted
that it was possible that he advised Price that his benefits
would be protected if he resigned from the Union.
I find that Reese misunderstood the import of his words
and thought that resignation from the Union was a necessary
element of a player’s declaration that he was on strike.
Burrus’ notes, which I have held accurately reflect his con-
versations with Gutman and Reese, show that Burrus heard
Reese talk about resignation; and Burrus had the same inac-
curate understanding. Finally, even if I were to accept the
testimony of all the Jets’ witnesses, I would conclude that
Reese and Gutman were asking Price for his declaration that
he was not striking in order to get his benefits. They were
asking him to relinquish his Section 7 rights of union affili-
ation and to become a strikebreaker not because they needed
him to play (he could not) or to rehabilitate (he was rehabili-
tating adequately in Georgia and Virginia before the strike)
but for some reason wholly unrelated to a reasonable busi-
ness justification required by Great Dane. I find a violation.
(2) Jeffrey Nowinski
Jeffrey Nowinski, a tight end for the Jets, injured his right
ankle during training camp on July 27. He saw Dr.
Hershman a week later, who advised Nowinski to stay off
his foot and not practice until his ankle healed. The Jets
placed him on injured reserve on August 27, and he went for
therapy at the Jets’ facility until about September 9. Then,
he returned to see Dr. Hershman, and on September 10,
Reese told Nowinski that both Reese and Dr. Hershman
thought that his ankle would heal in a week or two; that they
could send him home or he could continue to rehabilitate at
the Jets’ facility; and that he should be healed by September
21, at which time the Jets would release him. Reese said that
Nowinski had done a good job of rehabilitating his ankle and
that he should just go home. He prescribed no specific reha-
bilitation, but Nowinski should continue to run. If his ankle
had not healed, the Jets would bring him back for reevalua-
tion.
On September 11, he left New York and went to his home
in California. Soon, he began to worry about his status, espe-
cially because his ankle seemed to be no better and, upon
his release, he would be without pay. On September 17 he
telephoned Joe Patton, another of the Jets’ assistant trainers,
to ask if he could get a second opinion about his ankle’s
condition. Patton approved his request and told him to have
the doctor’s bill and findings sent to the Jets. Patton also told
Nowinski that the Jets wanted him to see either Dr. Friedman
in Los Angeles or Dr. Hershman in New York and said that
he would be in touch the next Monday. On or about Septem-
ber 21 Nowinski went to a different doctor to get a second
opinion. He opined that Nowinski had a very serious ankle
injury for which he should receive rehabilitation for 4 weeks,
2 to 3 times a week.
The following day, Patton called him twice and said that
the Jets had released and waived him and his contract was
now terminated. However, he wanted Nowinski to come
127NATIONAL FOOTBALL LEAGUE
back to New York that day or the next so that Dr. Hershman
could reexamine his ankle. Nowinski said that the notice was
too short, and Patton said that he would try to set up an ap-
pointment for the beginning of the next week. Later he called
back with the travel instructions and told Nowinski to dis-
continue all therapy until he saw Dr. Hershman. On Septem-
ber 24 Nowinski called Patton to tell him that he could not
return to New York on Monday—he needed to attend a fu-
neral in California—and his appointment was rescheduled for
October 1. On September 28, the Jets received Nowinski’s
injury grievance protesting that he had been released from
his contract before his injury had healed. Nowinski returned
to New York on September 30 and was reexamined by Dr.
Hershman on October 1, who confessed error in his first ex-
amination. His ankle injury was more serious; there was a
chip fracture. He should start treatment for at least 6 weeks,
perhaps 8 weeks, rehabilitating the ankle at least two times
a week. Hershman wanted to see Nowinski 6 weeks later,
about November 12.
Nowinski went back to the Jets’ facility, where he met
with Reese and Jim Royer, the Jets’ director of player per-
sonnel. Reese said that the Jets would continue to treat him
until he was well and, according to Nowinski, gave him three
choices. He could stay in New York and receive treatment
somewhere outside the Jets’ complex, in which case he
would be considered a striking player, would not be paid,
and would have to pay for his own room and board. The sec-
ond option was that he could resign from the Union, in
which event his injury grievance would be withdrawn. He
would stay at the same hotel as the replacement players
stayed, and he would rehabilitate his ankle at the Jets’ facil-
ity. The Jets would pay him, including the back pay the team
had not paid since it had released Nowinski on September
22. The third choice was that he could return to California
and receive treatments there, but he would not be paid.
Reese’s recollections of what he told Nowinski substan-
tially agreed with the first and third options. Reese claimed,
however, consistent with his testimony about Price, that he
never mentioned resignation from the Union, except in the
context of giving Nowinski the option of crossing the picket
line, in which event he might be subject to discipline by the
Union. To avoid that, he might want to consider resigning
from the Union. With respect to this second option, he would
be treated at the Jets’ facility for as long as it took to heal
his ankle, but when the strike ended, he would then be re-
sponsible for his own housing. Reese denied that he said
anything to Nowinski about making up the backpay for the
canceled game.
Nowinski asked why he was now being offered a choice
of striking or not striking, when he had been released and
was not even on the team. Reese did not directly answer. In-
stead, according to Nowinski, he recommended that
Nowinski resign from the Union and get his money imme-
diately. If his ankle healed in time, he could play on the re-
placement team. Nowinski said that he feared that, if he re-
signed from the Union, he would lose all his rights under the
collective-bargaining agreement and would be unprotected,
which would leave open the possibility that he would not be
reimbursed for his rehabilitation. He told Patton that he was
going to remain on strike, return to California, and receive
treatment there.
On October 20 Patton telephoned Nowinski and told him
that he was being placed back on the injured reserve roster
(according to Nowinski, as of his visit to Dr. Hershman on
October 2). Reese had told Patton that, ‘‘since the strike was
over and . . . Nowinski had not recovered [from his injury],
we were obligated to place him back on the injured reserve
roster;’’ that the strike was now over and Nowinski was cost-
ing the Jets money once again; and that he wanted Nowinski
to return to New York to be reexamined. Nowinski flew
back and saw Dr. Hershman on November 1 or 2, who said
that he had underestimated the seriousness of his injury. The
structures of his ankle were not healing properly and he had
a floating bone chip which was starting to move into the
joint. That could cause serious problems and should be re-
moved surgically. Nowinski had surgery on November 18 in
California.
The Jets did not pay Nowinski for the canceled game and
the three replacement games. Even accepting with the Club’s
version of the facts of this claim, I find no justification for
its refusal to pay for the canceled game. Nowinski’s benefit
had accrued. He had gone home with the full approval of the
team and had rehabilitated in California. He had complied
with all that he was supposed to do. When the strike oc-
curred, he was still in California; and his only obligation was
to return to New York to be reexamined by Dr. Hershman.
That appointment was delayed until after the canceled game
because Nowinski wanted to attend the funeral of a friend of
his, and the delay was never claimed as an unreasonable or
unjustified excuse, or, until the brief filed herein, as a reason
to deny him his pay. Even if I found that its defense was
anything other than a delayed pretext, I would find nothing
valid and reasonable about its position. Because Nowinski
had a bone chip, there was nothing that he could do to reha-
bilitate. He thus did not refuse to perform any service that
might have been beneficial to the Jets. In these cir-
cumstances, under any theory, I conclude that the Jets vio-
lated the Act by failing to pay Nowinski for the canceled
game.
As to the replacement games, the Jets had a right to re-
quire Nowinski to return to its facility for rehabilitation, pro-
vided, of course, that its directive was not merely a subter-
fuge to get Nowinski to make up his mind to cross the picket
line. Nowinski had rehabilitated at the Jets’ facility before he
was permitted to return to his home in California in early
September. The parties had different motives for Nowinski’s
return to California. He wanted to avoid paying rent and fi-
nally agreed to return to California when he was told that
due to his missing so much practice he had little chance of
making the team. The Jets thought that he would be fully re-
covered by the week of September 14, so the Club would
release him then because he was not going to make the regu-
lar squad anyway. When Nowinski did not fully recover and
the Jets asked him to return to New York, and Dr. Hershman
found that Nowinski’s ankle was still sore, the Jets were not
necessarily changing his treatment schedule when the team
asked that he rehabilitate at the Jets’ facility. That is where
he had engaged in his treatments on a daily basis before he
left for California.
Thus, I would not have considered a mere request to re-
turn to the facility a violation of the Act, as the General
Counsel’s brief suggests. But I find telling the fact that,
when the strike ended, Nowinski was reinstated to the in-
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
jured reserve list and was permitted to rehabilitate in Califor-
nia. He was not required to return to the Jets’ facility; but
he was paid for all games played, leading to the conclusion
that the requirement that he return to the Jets’ facility during
the strike was merely a sham. The Jets gave no valid and
substantial business reason for its requirement that Nowinski
should rehabilitate at the Jets’ premises during the strike, ex-
cept the suggestion that perhaps he could have played for the
replacement team, an unlikely event because Nowinski’s re-
habilitation was anticipated to take 4 to 6 weeks, and Reese
did not testify that he believed that the strike would continue
so long.
Equally important, I find that Reese conditioned
Nowinski’s return to the Jets’ facility upon his resignation
from the Union. As noted above, there was a conflict in the
testimony about whether the Club wanted Nowinski to resign
from the Union in order to return to the Club’s facility. I was
unimpressed with Nowinski’s powers of recollection. Particu-
larly, I found in his testimony moments of sheer lack of can-
dor and a reluctance to answer questions directly. His inter-
pretation of various events was sometimes skewed. For ex-
ample, he understood that one of Reese’s options, that he
would be considered a replacement player and would be paid
accordingly, meant that he would not be paid his contractual
salary but would be paid what replacement players were
being paid. That was an unwarranted conclusion, especially
when he could not recall that Reese said that he would not
receive his contractual salary.
I am also persuaded that, when Reese allegedly mentioned
that when Nowinski resigned from the Union, his grievance
would be ‘‘thrown out the window,’’ what was actually said
was that Nowinski would then be getting all his pay and all
his medical expenses that he was seeking in his grievance
proceeding and, therefore, the grievance would not have to
be pursued or would be ‘‘null and void,’’ as Nowinski stated
in his prehearing investigatory affidavit. Furthermore,
Reese’s second alleged option, that Nowinski had to resign
from the Union, is not mentioned in Nowinski’s prehearing
investigatory affidavit, an omission that could easily persuade
me that the option was never mentioned. A somewhat con-
vincing case could be made that Nowinski merely assumed,
as his testimony during cross-examination appeared to con-
firm, that a replacement player could not be a member of the
Union. Therefore, when Reese gave Nowinski the option that
he could cross the picket line and be treated as a replacement
player, he, being a member of the Union, may well have un-
derstood that he had to resign from the Union.
However, I have previously found that Reese testified un-
truthfully about his conversations with Price. The discussion
above, particularly in reference to Burrus’ log, shows conclu-
sively that Reese was under the impression that a player had
to resign from the Union in order to return to the Jets’ facil-
ity. I find that it is equally probable that Reese made the
same demands of Nowinski. The conflict represented in this
claim could have been clarified by the testimony of the only
witness to the conversation, pro Personnel Director Jim
Royer. However, he was not called as a witness; and I infer
that his testimony would not have supported Reese. So, de-
spite the fact that I do not have the utmost faith in what
Nowinski had to say, I find even less credence in Reese’s
testimony, because he was so utterly contradicted by the
written log of Burrus. Accordingly, I conclude that the Jets
violated Section 8(a)(3) and (1) of the Act by conditioning
Nowinski’s return to their facility on his resignation from the
Union, as well as the other reasons set forth above.
m. Woodrow Lowe
Woodrow Lowe, an outside linebacker for the Chargers,
was on injured reserve for the entire season. He underwent
arthroscopic knee surgery on September 8 and returned to the
Chargers’ training facility to begin his therapy the following
day. From that day to September 21, Lowe went to the
team’s facility every day, 7 days a week, to rehabilitate, at-
tend team meetings, and, after several days, watch team prac-
tices. Lowe testified that on Monday, September 21, he had
his therapy to strengthen his knee and took a test on the
Cybex machine, during which he said to Mark Howard, the
Chargers’ head athletic trainer, ‘‘[H]ere we go again,’’ refer-
ring to the fact that there was about to be a repetition of the
1982 strike. Howard replied that it was foolishness, and
Lowe said that, as an injured reserve player, he did not know
what to do. Howard said that he did not know, either. Early
in the afternoon, Head Coach Al Saunders met with the play-
ers and told them that, whatever happened, he wanted the
team to stay together and to stay in shape as a unit.
On the following day, Lowe did not report to the team’s
facility. Instead, he telephoned Howard between 7 and 8 a.m.
and, according to Lowe, asked him; ‘‘Do I come in?’’ How-
ard said no. Lowe then asked: ‘‘Can I come in?’’ Howard
said no: the players were on strike and they had been locked
out. Lowe said that he had to get his knee rehabilitated, and
Howard told him said that provisions had been made for him
to go to the Sports Injury Clinic.
Except for 2 days, Lowe attended the clinic every week-
day during the strike. He also saw the team’s doctor, as
Howard requested. He also carried a picket sign about 12 to
15 days of the strike, staying about an hour each time, and
he practiced with the striking players every day, but one or
two, that they practiced, or at least attended those practices.
He voted, with his teammates, on October 15 about whether
to return from the strike and to play that weekend. He denied
that at any time Howard told him that, if he were not on
strike, he could have rehabilitated at the Chargers’ facility
and received his game checks. He also denied that at any
time Howard told him that, if he were on strike, he would
have to do his rehabilitation at another facility and would not
be paid.
Howard’s testimony was predictably quite different from
Lowe’s. He could not recall having a conversation with
Lowe on Monday, September 21. He denied that he said any-
thing on September 22 like that testified to by Lowe. He said
that he would not have told Lowe that he was locked out or
that he could not come in for therapy, because he would not
have made that kind of decision. Furthermore, he had been
advised about the position of the Management Council that
players who did not report for therapy were on strike and
that the team had to provide treatment for players elsewhere.
At the time he testified, Howard was no longer employed
by the Chargers and thus had no particular interest in this
proceeding, except perhaps loyalty to his former employer.
Conversely, Lowe had much to gain, namely four game day
checks. Although that is not definitive, I find support for
Howard’s testimony in his understanding of the Management
Council’s rules and Lowe’s clear support for the Union,
129NATIONAL FOOTBALL LEAGUE
which would make me think that he had no intention of
breaking the strike. In addition, Lowe knew that one other
regular player on injured reserve had returned to the Char-
gers’ training facility and thus would have no reason to be-
lieve that the training room had been closed to him. I find
that Howard was at the facility on September 22 and was
ready and able to continue Lowe’s therapy if Lowe had re-
ported to the facility, as he had steadily for weeks before.
Because Lowe did not continue his rehabilitation, the Char-
gers were not obliged to pay him for the games scheduled
during the strike, except for the last replacement game, be-
cause Lowe reported on October 15 and was illegally denied
reinstatement. Otherwise, I recommend that this allegation be
dismissed.
n. Mark Mullaney
The claim of Mark Mullaney, a defensive end for the Vi-
kings, involves the nonpayment of two game checks, the can-
celed game and the first replacement game, and an 8(a)(1)
claim that Vikings’ general manager and executive vice
president, Mike Lynn, tried to get Mullaney to resign from
the Union. These allegations have been complicated by a
violation of the sequestration order, which I granted at the
beginning of the hearing, and the Vikings’ failure to produce
certain subpoenaed documents.
Mullaney suffered severe nerve damage in his neck on Au-
gust 15 and was on injured reserve by the time that the first
regular season game was played on September 13. From then
until the day of the strike, Mullaney reported for therapy (ice
and ultrasound treatments) at the Vikings’ facility each day.
Mullaney testified that on September 22 he complained to
Fred Zamberletti, the team’s head athletic trainer, that he has
having more pain than ever and trouble sleeping.
Zamberletti, knowing that Mullaney had seen the team’s or-
thopedist and neurologists and that he had had an MRI and
a CAT scan, recognized that Mullaney had a very significant
injury because it had lasted that long. Zamberletti explained
that he had gone as far as he could with his treatment and,
with Mullaney feeling worse, maybe Zamberletti had to
‘‘back off.’’ Zamberletti told Mullaney that he could not put
an aspirin on Mullaney’s neck and he had no magic cures.
With the strike, this would be a good time for Mullaney to
go home and rest and see if that would help, because the
progress of his injury was very slow and long lasting. So,
Mullaney followed his advice.
About a week later Mullaney called Zamberletti to tell him
that he was not doing very well and that he wanted to return
to the Club to receive treatment. Zamberletti said that he
would arrange an appointment with a neurologist, whom
Mullaney saw on September 29. On October 6, the Tuesday
after the first replacement game, Mullaney talked to his
teammate, Scott Studwell, who said that his striking team-
mates had decided that, because of the nature of Mullaney’s
injury and because the team was concerned with his well-
being, the best way he was going to help the team in the
near future was to get healthy and the way to do that was
to report to the team’s facility before noon the next day.
Mullaney testified that he returned the following morning,
saw Lynn, and relayed what Studwell had said that preceding
day as the reason he was there. (Lynn had no recollection
of any conversation with Mullaney that week.) Lynn said
that he could not return and that Mullaney was of no help
to Lynn, who had no need for him at that time. Lynn needed
players that could play. He was concerned about the team
that he had on the field. He needed some talent and he did
not have any.
According to Mullaney, Lynn said that the best way that
Mullaney could help was to convince some of the other play-
ers, some of whom he named, to return. He could not help
by coming back. That was not a good idea, and he was con-
cerned about the unity of the team. Mullaney responded that
it was the team’s decision and his to return at that time, there
was nothing further to discuss, and he could not act on be-
half of or speak for the other players. Lynn said that
Mullaney could not come back unless he resigned from the
Union. Mullaney had to send the Vikings a letter by certified
mail that he was no longer a member of the Union and that
he revoked his checkoff authorization. Mullaney said that he
had never heard of such requirements. Lynn said that they
were normal and Mullaney should have known about them.
When Mullaney asked Lynn to repeat his instructions, Lynn
wrote down, saying ‘‘This is what you’ve got to do and
you’ve got to do it today,’’ the following:
Write a letter saying you resign from the NFL Play-
ers Association and that you revoke the dues checkoff
authorization.
Send the letter by certified mail.
NFLPA
2021 L Street, N.W.
Washington, D.C. 20036
Lynn instructed Mullaney to see Head Coach Jerry Burns,
to whom Mullaney related what he had told Lynn as the rea-
son for his return to the Club. Burns said that he was con-
cerned with team unity, and he thought that Mullaney should
stay with the team. Mullaney replied that his return was the
team’s decision, that his teammates were concerned about his
health, and that he was no good to the team injured and it
was best for him to get healthy. Burns told him that, if he
returned, he should split whatever money he was paid with
his teammates; but Mullaney said that that was none of
Burns’ concern and that he hoped that Burns respected his
opinions as he did Burns’. Burns said fine and told Mullaney
to see Zamberletti.
Mullaney then went to the training room and told
Zamberletti that he was back for treatment. However,
Mullaney was scheduled for a myelogram the following day
and could not come in then because the procedure took up
most of the day; and, because he had to rest for 24 hours
after that procedure, Friday was not a good day to have a
treatment. Zamberletti said that there was no reason for
Mullaney to come in on Saturday, which was a day for a
brief practice and then travel, and Sunday was game day, so
Mullaney should return on Monday. Mullaney began his
therapy that Monday, continued it that week and Monday
and Tuesday of the following week, and after that received
his therapy at a therapy center owned by Zamberletti through
the remainder of the football season. He never returned to
the Vikings’ facility and remained on injured reserve for the
rest of the season. He was not paid for the canceled game
and the first replacement game.
Lynn’s recollections were different. He testified that on
October 7, Mullaney and Mike Mullarkey, another injured
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reserve player, returned for treatment. The following day,
Lynn read in the newspaper that both players had reported
solely for the purpose of receiving treatments and that they
were not going to attend meetings or practice with the team
or play, even if they were able to. They considered them-
selves still on strike and intended to join the strikers in their
meeting and practices. As a result, on October 8 Lynn met
with the team council, which had been established prior to
and in anticipation of the strike and consisted of the Union’s
player representative and his assistant and veteran players at
each position, to tell them that players would not be entitled
to come in and receive treatment and nothing else. They
would be expected to do all the things that they had pre-
viously done as injured reserve players and that they were
under the direction of the doctor and trainer and coaches and
should do whatever they asked.
Lynn expressed his displeasure that the team had allowed
only two players to return, while there were other injured re-
serve players, and asked whether they had been given the
same opportunity. When he was told no, he explained his
concern that all the players, those on injured reserve and
those injured in the last regular season game, should have
been given the same opportunity to return and be paid. The
players met alone and reported that Mullarkey, whom Lynn
had invited to the meeting, had decided that he was not
going to cross the picket line and was going to remain on
strike. That afternoon, Lynn telephoned Mullaney and re-
peated what he had told to the team council, including the
fact that Mullaney would be treated just as if he were an in-
jured reserve player during the regular season without a
strike. Mullaney said that he understood and would continue
to report.
The General Counsel moved that I should not permit Lynn
and Zamberletti to testify or should strike their testimony on
the ground that Lynn had been given a copy of Mullaney’s
testimony in this proceeding and Zamberletti had been given
Lynn’s copy prior to testifying in this proceeding. The Gen-
eral Counsel contends that the reading of prior testimony
constitutes a violation of the sequestration order entered by
me at the beginning of this proceeding. Regrettably, this is
not the first time that Sargent Karch, counsel for the Clubs,
has been accused of the same conduct. In Seattle Seahawks,
292 NLRB 899 (1989), enfd. mem. 888 F.2d 125 (2d Cir.
1989), he showed three of the respondent’s most important
witnesses the entire transcript of the proceedings which pre-
ceded their testimony. Administrative Law Judge Bernard
Ries found that Karch had violated the sequestration order
(id. at 907) in that proceeding, concluding that:
a rule expressed as including the obligation of counsel
to ‘‘keep their witnesses out if you see them coming
in’’ should have been reasonably understood by experi-
enced trial counsel as precluding the unrestricted access
of prospective witnesses to verbatim transcripts of the
proceeding. See Miller v. Universal City Studios, 650
F.2d 1365, 1373 (5th Cir. 1981). [Emphasis added.]
Judge Ries refused, however, to strike the testimony of the
three witnesses. First, he found that most of the transcripts
contained testimony of witnesses for the General Counsel.
He found that to be ‘‘a matter of no great substantive con-
sequence’’ because it is the collusion of witnesses for the
same party that is mainly to be prevented, although he noted
in footnote 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 pure-
ly preventative; i.e., it is designed, like the rule against
leading questions, to deprive the witness of suggestions
as to the false shaping of his testimony. 6 Wigmore,
Evidence § 1838 (Chadbourn rev. 1976) (emphasis in
original).
Judge Ries wrote that in proceedings before the Board a
respondent frequently has no more than a skeletal pleading
and no opportunity for discovery, so that ‘‘the rule should
be applied to make it possible for a respondent’s counsel to
acquaint his potential witnesses with the substance of the tes-
timony given by the Government’s witnesses.’’ Ibid. He sug-
gested that, if counsel had been unaware that certain testi-
mony would be given, counsel should have applied for his
permission to advise the witnesses of the pertinent testimony
given for the General Counsel and he would probably have
waived the rule to that extent. He added, however: ‘‘This
probability does not, of course, detract from my ruling that
counsel violated the blanket prohibition of the existing rule
by making the transcripts available to the three witnesses
without requesting permission to do so.’’ Ibid.
Karch showed the three witnesses the testimony of one
witness who appeared on behalf of the respondent. Judge
Ries found that the three witnesses’ testimony should not be
struck because the testimony of the one could not have in-
spired the three to reshape their testimony. In addition, he
denied the motion on the grounds that Karch did not know-
ingly and consciously circumvent the rule and that he was
beset by a demanding personal problem. Thus, he explained,
Karch probably gave no thought to the implication of the
rule when he sent the transcripts to other locations ‘‘solely
as an expedient means of trial preparation.’’
Finally, Judge Ries cited Gossen Co., 254 NLRB 339
(1981), enfd. as modified 719 F.2d 1354 (7th Cir. 1983), as
the Board’s last word on the subject (it is still the Board’s
last word), quoting its ruling at footnote 1:
Under the particular circumstances of this case, particu-
larly since the parameters of the sequestration arrange-
ment had not been precisely defined and since, in as-
sessing credibility, the Administrative Law Judge was
aware that some witnesses had read portions of the
transcript prior to testifying, we agree with the Admin-
istrative 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 endorsing the proposition that showing portions
of the transcript to prospective witnesses who have
been sequestered is warranted as part of trial prepara-
tion.
The General Counsel concedes that the Board has never
approved the striking of testimony because of the violation
of the sequestration rule. This is not to say that there ought
never to be such a situation, but in any event this is not one
131NATIONAL FOOTBALL LEAGUE
52 Because of this conclusion, it is unnecessary for me to draw any
adverse inferences from the material that the Vikings failed to
produce pursuant to a subpoena.
of them for several reasons. Mullaney was a credible, sympa-
thetic, even compelling witness; and I might normally have
credited him in full. However, Lynn denied that he had any
discussion with Mullaney on October 7 or during that week
at the Vikings’ facility and that he ever talked with Mullaney
about his possible resignation from the Union. He specifi-
cally denied that he wrote the above-quoted draft letter. Lynn
wrote the same contents while he was on the witness stand.
His handwriting sample looked nothing like the draft. Other
of Lynn’s handwriting samples introduced in an attempt to
discredit Lynn failed to even approximate the writing of the
draft. I find that Lynn did not write it. The record does not
indicate who did; and, although I firmly believe that
Mullaney did not fabricate his testimony, I am convinced
that he either did not have the conversation with Lynn but
with someone else whose identity he forgot, or he talked
with Lynn but someone else wrote the memorandum. The
General Counsel did not recall Mullaney to clarify the dis-
crepancy, and I reluctantly conclude that the General Counsel
has failed to prove this 8(a)(1) allegation by a preponderance
of the evidence.
I will not strike Lynn’s testimony. That would be most un-
fair to the Club, which is, on this record, innocent of the
Section 8(a)(1) violation with which it is charged and would
punish it for the error of its attorney. That is unwarranted in
this instance, particularly because the reading of the tran-
script could not have caused Lynn to alter his handwriting,
unless he has perpetrated a massive fraud upon the Board,
and I have no hint that he has.
I refuse to strike Zamberletti’s testimony also, but not be-
cause Karch sent the transcript only to Lynn. Karch should
have reasonably anticipated that Lynn would show the tran-
script to Zamberletti and might have even requested Lynn to
do so. Certainly, Karch is not blameless; but, in any event,
Zamberletti agreed that he told Mullaney at the beginning of
the strike to go home and rest and do nothing. Mullaney, by
staying home and not reporting to the Vikings’ facility, was
following Zamberletti’s instructions to the letter. I conclude
that the Vikings violated the Act by not paying Mullaney for
the canceled game and the first replacement game.52
That I have refused to grant the General Counsel’s motion
to strike does not end matters. I infer that Karch read Judge
Ries’ decision which issued in 1983. In case Attorney Karch
forgot about it, it was attached to the Board’s decision which
issued prior to the time that the two Vikings’ witnesses testi-
fied. He must have known that he was found to have vio-
lated the rule, and yet he is guilty of the same violation
again. His brief recognizes only that the ‘‘provision of tran-
scripts is not a favored means of trial preparation’’ but fails
to recognize that what he did was wrong. Instead, he relies
again, as he did so many years ago, upon the fact that ‘‘he
had no other time or manner to prepare Lynn for his testi-
mony.’’ I reject that excuse. Counsel for all parties asked for
numerous adjournments during this proceeding and never
were denied sufficient time to prepare their cases. Karch
could have asked for time, but did not.
Karch’s claim that the directions to him were never spe-
cific enough to give him any indication that he was not to
show the transcripts of testimony to other witnesses makes
a mockery of this proceeding and his own intelligence. First,
he should have been fully aware of his responsibilities from
reading Judge Ries’ decision. Assuming that he missed the
point contained in that decision, and I cannot imagine how
he could, I thought that my directions were clear enough so
that anybody should have been aware of the obligations of
the sequestration rule. When the matter was first raised, be-
cause there were no witnesses present, I instructed all coun-
sel to advise all witnesses that they were henceforth not to
discuss the content of their testimony with any other witness.
During the proceeding, I advised all witnesses, when they
completed their testimony, that they were not to discuss their
testimony with anyone else. At one point in the hearing, Re-
spondents’ counsel objected to my ruling that witnesses,
while they were testifying, were not to consult even with
counsel during breaks. Although that matter was ultimately
disposed of by agreement of the parties, Karch should have
been abundantly aware that, as I commented during the hear-
ing, ‘‘witnesses would be prepared to testify to the best of
their recollection without having their testimony at all altered
or swayed by what they hear from others.’’ During the hear-
ing, when a question was raised about whether a union rep-
resentative should be permitted to remain in the hearing
room, he argued that all witnesses were subject to the se-
questration rule and that the witness should leave. I am not
convinced that he truly thought that if witness A could not
discuss his testimony with witness B, Karch could nullify the
sequestration rule by sending witness A’s testimony to wit-
ness B.
What is now important is how to maintain the integrity of
Board proceedings if attorneys, who are officers of the court,
breach sequestration orders with impunity. The Board has
thus far refused to strike testimony, and I think properly so;
but there must nevertheless be some appropriate action with-
in the Board’s power to ensure that its sequestration orders,
which the Board requires to be issued under Unga Painting
Corp., 237 NLRB 1306 (1978), are complied with. In this
proceeding, particularly, the question raised by Karch’s con-
duct raises the question about his ability to understand that
sequestration orders are meaningful and apply to all parties
and attorneys, including those parties he represents and him-
self. Unhappily, he appears not to have understood that or-
ders are issued to be complied with. Karch must learn not
to disregard orders of administrative law judges repeatedly
and with impunity. The Board is not powerless to ensure the
integrity of its own processes. (Section 102.44 of the Board’s
Rules and Regulations.) I will, therefore, recommend that the
Board order a hearing into his conduct and give consider-
ation to whether he ought to be suspended from practice be-
fore the Board for a specified period of time.
o. Carl Powe
Carl Powe, a wide receiver for the Cowboys, suffered a
shoulder separation during training camp and was placed on
injured reserve on September 11. Thereafter, he reported to
the Cowboys’ facility, twice a day, 5 days a week. On Sep-
tember 22, he arrived at his usual time and was asked by the
assistant trainer what he was doing there. Powe replied that
he was coming in to receive therapy. The trainer said that
there was a strike as of midnight, and he told Powe to see
Head Coach Tom Landry. Landry, in turn, told Powe to see
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joseph Bailey, the Cowboys’ vice president of administra-
tion, to sign some papers, so Powe went to Bailey’s office
where he told Bailey that Landry had sent him to sign some
papers.
At this point, Powe’s testimony diverges from Bailey’s
recollections. Bailey did not give Powe any papers, but said
that he had to resign from the Union. If he did not resign
from the Union, the Union could take action against Powe,
such as taking half or all of his paycheck. Bailey added that
if Powe came in, it would be with the intent to play, al-
though Powe was on injured reserve. Powe said that he had
to consult with his player representative, Doug Cosbie. Powe
left the office and did not return to the Cowboys’ facility for
2 weeks. Then, after seeing the trainer and Landry, Powe
eventually met with Bailey again and told him that ‘‘I was
coming in.’’ Powe went to receive therapy thereafter and was
paid for the next two games.
Bailey testified that he met with Powe in the morning of
September 23, having heard that Powe was in the training
room and having asked to see him. Powe asked: ‘‘What do
I do now?’’ Bailey said that he had a choice. He could cross
the picket line, come into the team’s facility and receive
therapy, in which event there were two options. He could re-
main a member of the Union. However, by crossing the pick-
et line, he might be subject to discipline, fine or expulsion,
by the Union. He could avoid that discipline by sending a
letter of resignation to the Union. Bailey said that he made
clear to Powe that he was not recommending such action. Fi-
nally, if Powe did not wish to cross the picket line, he could
continue his therapy at an alternate clinic, and the Cowboys
would pay for that. Because Powe looked puzzled by what
Bailey had said, Bailey repeated all these options. If he did
not report for therapy and honored the picket line, he would
not be paid for the games that would be played; but he
would be paid for the canceled game if he reported for ther-
apy.
Bailey said that he did not tell Powe that he had to resign
from the union and that he mentioned resignation only in
connection with a Management Council document which he
had in front of him and which stated that he could not
‘‘threaten or coerce a player to disavow himself from the
union.’’ In further support of his position, he noted that when
Powe returned to the team’s facility 2 weeks later, before the
end of the strike, he never asked Powe whether he had re-
signed from the Union, and Bailey testified that he did not
know whether Powe had resigned.
Bailey contended that it was essential that he talk to the
returning players, such as Powe, to ascertain that they were
‘‘officially crossing the picket line, so that we could docu-
ment that for our records.’’ Although the Act does not re-
quire the Club to document anything, I find that Bailey told
a much more probable scenario relating to his dealings with
Powe. On cross-examination, Powe admitted that among the
items omitted from his narration of his first conversation
with Bailey were that Bailey talked about Powe’s therapy at
the Cowboys’ facility; that there were alternate facilities that
Powe could be treated at if he so chose; that Powe went
there for the next 2 weeks; and that whether Powe resigned
from the Union or not was his choice.
The tenor of the discussion, therefore, was that Bailey was
not forcing anything on Powe, but he was giving him a
choice. Powe misunderstood what Bailey was saying, but he
understood enough that he knew that there was a possibility
of some adverse monetary effect if he crossed the picket line
without resigning. As a result, I find that Bailey did not
threaten Powe that he had to resign from the Union in order
to return for therapy in violation of Section 8(a)(1) of the
Act. I further find that Bailey did not impose any illegal con-
dition which would otherwise have coerced Powe from car-
rying out his obligation to rehabilitate himself at the Club’s
facility, as he had done for 10 days prior to the strike. Thus,
the Cowboys’ failure to pay Powe two game checks did not
violate the Act, and I will dismiss these allegations.
p. Robin Sendlein
From the foregoing litany of very serious injuries, one
may wonder why football is so attractive a game. The injury
suffered by Robin Sendlein, a linebacker for the Dolphins
since 1985, was particularly frightening. He received a blow
to the head during the first major contact drill in the 1987
training camp and suffered from dizziness and double vision.
He reported his problem to trainer Bob Lundy, who said
what Sendlein had expected to hear—take a few plays and
let your head clear and go back in when you feel that you
are ready. He followed that instruction and returned to prac-
tice; but with each practice, he had recurrences of double vi-
sion which became more serious. Finally, on July 26 Lundy
arranged for Sendlein to see an ophthalmologist, who said
that Sendlein suffered a slight concussion and recommended
that he take some time to see if it cleared up. Sendlein did
so and for several days did not get into his pads, but just
attended meetings and watched practice.
On July 31, he engaged in practice and once again became
dizzy and suffered more severe double vision. Lundy ar-
ranged for him to go to a hospital, where he had a CAT
scan, which revealed no tumor or excessive fluid or enlarge-
ment of the brain. The doctor thought that Sendlein had a
slight concussion and kept him in the hospital for a few days
for observation. Sendlein returned to camp and traveled with
the team for week-long scrimmages against the Falcons.
Again, he suffered a blow which caused dizziness, now last-
ing longer, and more severe double vision. Again, there was
a rest period and again Sendlein engaged in practice during
which, while warming up, he received a blow which was the
‘‘worst bout’’ he had had with double vision. On August 12,
Sendlein went to the Bascom Palmar Eye Institute (‘‘Insti-
tute’’), where he was diagnosed as having some dysfunction
in the fourth cranial nerve of his right eye. It was caused by
head trauma, and Sendlein was told not to have any contact
for 6 months.
That message was relayed to Dr. Virgin, the Dolphins’ or-
thopedic surgeon, who met with Sendlein twice on August
13 and in the second meeting told him that he had decided
not to let Sendlein play for 6 months, especially because he
was worried that there could be damage to other functions
which originate in the brain stem. The doctor told Sendlein
to meet with Head Coach Don Shula, and Shula told
Sendlein that based on his conversation with the doctor he
was putting Sendlein on the injured reserve list for the sea-
son and asked whether Sendlein had a degree or had a job
waiting. When Sendlein replied that he did not, Shula asked
whether he would be interested in doing some scouting and,
if so, to contact Charlie Winner, the Dolphins’ director of
player personnel. Shula wanted Sendlein to keep going to his
133NATIONAL FOOTBALL LEAGUE
scheduled examinations at the Institute and to call the train-
ers after each examination. Shula also said that Sendlein
would not have to attend practices or meetings or film ses-
sions or even be at the Dolphins’ facility. He should just
pack his things and go home, which is what Sendlein did.
His contacts with the Dolphins from this point were mini-
mal. Two days later Sendlein went to the team’s facility and
asked Winner about the scouting possibilities, and Winner
said that he would talk with head scout Chuck Conners and,
when they had something ready, they would contact
Sendlein. On September 16 he had an appointment at the In-
stitute and reported by telephone to Lundy thereafter. By
September 22, the start of the strike, Sendlein had not prac-
ticed with the Dolphins since August 12. On October 12 or
13, because he had heard that injured reserve players would
not receive their pay unless they went into camp for treat-
ment, Sendlein called Winner and informed him that he
would report to the facility the following morning. That
Tuesday or Wednesday, according to Sendlein, he met with
Winner, who said that he had talked with both Shula and Dr.
Virgin and that Sendlein was to attend meetings and film
sessions and put on pads and go to practice, and participate
in everything but full contact. Sendlein, fearful of being in
contact, even in drills that were supposed not to involve con-
tact, but often did, told Winner that he thought that it would
not be a good idea for him to participate in the practice ses-
sions. Winner said that that was his decision, and Sendlein
left.
Concerned that the Dolphins were changing his status,
Sendlein reported to Joe Robbie Stadium when the striking
players made their aborted attempt to return to work on Oc-
tober 15. Then he returned on Monday, October 19, when
the veterans returned. He met with Shula and asked if he was
required to report to practices and attend the meetings. Shula
said no, that he should just keep the trainers abreast of his
appointments at the Institute. Sendlein went home.
Sendlein is a dedicated player. He was injured the entire
1986 season with knee problems, and he underwent surgery
twice. Nonetheless, when he was able to, he engaged in his
therapy and went to all team meetings and film sessions and
watched practices. Only if he had been advised that he did
not have to attend the same meetings and practices in 1987
would he not have done so. The Dolphins do not argue oth-
erwise, except to contend that Sendlein supported the strike
and attended a team meeting on October 10 and picketed that
day. However, the Act permits him to support the Union, as
long as he is not withholding services from the Club. The
only service that the Club sought from him were those that
were instituted after the strike began and only as a result of
the strike. Winner’s requirements represented a complete
change from what Sendlein was required to do before the
strike, which was nothing.
Winner testified that he followed the Council’s instructions
to the letter. Thus, when Sendlein came to his office on Oc-
tober 12 and 13 (Winner could not recall that Sendlein tele-
phoned the day before), Winner told him that:
he would have to follow the procedures that were set
up by the National Football League, and that was that
he couldn’t be both a non striker and a striker, meaning
that he couldn’t be picketing on one hand and then
being in our classroom sessions on the other hand, and
that he would have to participate in all meetings, like
any other non striking player that was in there, and that
he would have to do whatever was allowed by the doc-
tor and the trainer, as far as physical activities.
It is the last point, particularly, where Winner differed so
from Sendlein. I cannot imagine that Sendlein would have
walked out had he been required only to attend meetings.
The practices were what would have made him fearful. That,
coupled with the representation by Winner that he had al-
ready talked with the trainer and Dr. Virgin, who may well
have been unaware of the fact that, even in noncontact drills,
there is contact, makes it more probable that Sendlein would
have left the premises. In addition, I found that Sendlein’s
powers of recall were much sharper than Winner’s, and I
was more impressed by Sendlein as a candid witness. I note
that Winner testified that he saw Sendlein later that day in
the training room, a fact easily corroborated by one of the
trainers. Yet no trainer was called to testify. Winner did not
deny that Sendlein came to him to ask for a scouting assign-
ment. Yet he testified that he did not know that Sendlein was
out for the season, a statement which I find incredible, par-
ticularly when coupled with the fact that Winner’s assign-
ment was to hire players to fill in for injured reserve players
and he could not recall that he hired any player for the sea-
son.
Finally, even if I did not credit Sendlein’s testimony, Win-
ner admitted that ‘‘during the strike it was a whole new ball
game, as far as the injured reserve players.’’ Before and after
the strike, Sendlein was not required to come to the Dol-
phins’ facility. It was only during the strike that he had to
come to the facility, attend meetings and film sessions, and
attend practices. That was clearly a change of working condi-
tions imposed solely as a result of the strike. I conclude that
the Dolphins violated the Act by their failure to pay Sendlein
for the canceled game and the three replacement games.
q. Liability
Sendlein’s claim shows vividly that the refusals to pay the
various players was not the result of independent decisions
by the Clubs. Rather, the Management Council had carefully
programmed a plan of action in the event of a strike, includ-
ing detailed instructions about how to deal with the injured
reserve players. The instructions may not have covered every
eventuality, and they may not have been followed with equal
vigor by each of the Clubs; but there is no question that the
Clubs were following the Management Council’s directives
to the best of their understanding. The League was in the
middle of critical labor relations, and the Management Coun-
cil had the authority to fine Club officials for any statement
prejudicial to the Management Council in its bargaining. The
Clubs must have well understood that any actions they took
in disregarding the memoranda they received from the Man-
agement Council were equally prejudicial to their bargaining
position. The directives here may not have been as strong as
the deadline rule, but I am persuaded that the policies for
dealing with the injured reserve players were dictated from
the top, and that all Respondents share equally the failure to
pay the injured reserve players, in violation of the Act.
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. Bypassing of the Union
On September 19 the Management Council issued and dis-
tributed to all the players a leaflet entitled ‘‘NFL UPDATE
’87’’ which announced that the Clubs were ready to increase
the settlement offer that they had made to the players on
September 7. They foresaw even more improvement in the
following areas: increased minimum salaries, improved past
service pension credits, increased postseason playoff moneys,
further liberalization of the system of firstrefusal compensa-
tion, dropping the Management Council’s proposal to nego-
tiate contracts, new schedule of option clause percentages,
discussion of additional aspects of the entry-level wage scale,
increased squad size, deletion of a proposal for contract sign-
ing deadline, liberalization of line-of-duty disability stand-
ards, increased veterans’ maximum life insurance benefits,
reduced medical deductibles for individuals and families, in-
creased injury protection benefits, increased rental allow-
ances, increased meal allowances, and increased expansion
bonuses. The complaint alleges that the Management Council
bypassed the Union by making these ‘‘offers’’ to the players
before ever mentioning them to the Union.
Donlan testified that he met with Upshaw in the morning
of September 18 at National Airport in Washington, D.C.
and discussed all these matters. He said that the day before
he had typed for the meeting two sheets of paper on which
all these proposals were listed. In addition, Donlan had pre-
pared the leaflet which tracked his proposals and which he
intended to release once his meeting with Upshaw had con-
cluded. While flying from New York to Washington, Donlan
reviewed his typewritten list, made some notations, and re-
viewed the parties’ respective positions on each of these mat-
ters. After meeting with Upshaw, Donlan reviewed his list,
made sure that he had covered everything, and then author-
ized his office to send the leaflet. Upshaw admitted that he
met with Donlan that morning, but he said that Donlan cov-
ered hardly any of the items set forth in the Management
Council’s flyer.
Although I have substantial doubts about whether Donlan
reviewed each and every item on his list in the detail which
he testified at the hearing—his testimony contradicted in sev-
eral material and serious respects affidavits which he submit-
ted during the investigative stage of this proceeding, but the
inconsistencies and contradictions were not nearly as many
as the General Counsel and the Union argue—I find that his
narration makes considerable sense and that it is most likely
that he made the proposals that he said he did.
During late August, Upshaw was traveling about the coun-
try visiting the players of each team. He had no time to meet
with Donlan because he was enlisting support for the upcom-
ing strike and was too busy with his membership to meet for
collective bargaining. I am not necessarily blaming Upshaw,
because I think that he could read management’s position
well enough. On the vital issue of free agency, the Manage-
ment Council was not going to give in. Once that could not
be settled, not much else of the Union’s extensive proposals
was particularly meaningful. So it was that the parties had
not met for negotiations from August 15 to August 31, and
Donlan prepared and hand delivered to the Union on Septem-
ber 7 a new counteroffer which, he says, was intended to
break up the logjam. Upshaw told the press that the proposal
was ‘‘garbage’’ on September 10, 2 days after he had an-
nounced that the Union would strike on September 22.
On September 9 Donlan telephoned Upshaw to advise that
the proposal was not a final proposal or a ‘‘take it or leave
it’’ offer. Now that a strike date had been set, Donlan
thought that the parties ought to be meeting, and because the
CEC was meeting the next day, Upshaw ought to meet di-
rectly with the powers-that-be. Upshaw agreed and met, but
the reaction he obtained from the committee was anything
but hopeful. In no shape or form would management bow to
the Union’s demand for free agency. The following day
Donlan called Upshaw and suggested that they meet at a site
where the parties could concentrate on collective-bargaining
negotiations, away from the glare of publicity and telephones
and press conferences. Donlan’s suggestion of Williamsburg
was rejected. Upshaw wanted to remain in the Washington
area because of the illness of a member of his family and
had to be near a major airport. He rejected Philadelphia and
even Dallas (the relative lived in Texas), and Upshaw finally
said that he would meet nowhere but in Washington.
Donlan then telexed a letter to Upshaw saying that he was
prepared to meet and negotiate with Upshaw anywhere he
could find space in the Greater Washington area. Upshaw
called Donlan that day to say that he would get back to him
as soon as he found some locations, and later that night, Up-
shaw told Donlan where a reservation had been made. For
2 days, September 12 and 13, the parties reviewed Donlan’s
September 7 proposal, which, to Donlan, resulted in no
progress. On Sunday night, September 13, the Management
Council prepared an ‘‘NFL UPDATE ’87’’ which was sent
to all the teams the following day or Tuesday for distribution
to the players, setting forth its views of the key points of its
September 7 proposal. Donlan testified that it was his way
to stimulate some bargaining, that his proposal was not the
final proposal, that there was still room to negotiate, and that
the players should put some ‘‘heat’’ on the Union and the
player representatives to get negotiations moving. The bro-
chure so states:
NFL owners believe that through negotiation and
compromise, they can reach an agreement without inter-
ruption of the 1987 National Football League season.
A solid offer on the table is the best way to stimulate
meaningful negotiation. It’s not too late to avoid a
strike.
. . . .
Owners believe it’s important that you know their
position. They are committed to negotiate with your
representatives. Let your reps know your feelings on
the issues.
On September 15, the Union rejected the Management
Council’s proposals and presented its counterproposal which
Donlan termed at the hearing as a ‘‘walk away proposal,’’
one that was so expensive (leaving aside the Union’s free
agency proposal, the remaining demands would have in-
creased costs according to his calculations by $200 million
per year) and so unresponsive to his proposal that it was not
conducive, in his mind, to further meaningful discussions.
After examining it briefly, Donlan said to Upshaw that he
would be in touch.
Donlan tried to contact Upshaw on September 16 to no
avail. He was able to reach only Berthelsen, who said that
he understood that Donlan had been trying to reach Upshaw
135NATIONAL FOOTBALL LEAGUE
and asked what he wanted. Donlan said that it was obvious
and left a message that he wanted to talk to Upshaw. When
Upshaw did not return Donlan’s call, Donlan wrote to Up-
shaw:
Tried to reach you by phone yesterday. Spoke with
your secretary and Dick Berthelsen asking that they
pass on the message that I have been trying to reach
you.
The magnitude and late timing of your proposal cer-
tainly gives all of us the clear message that you want
a strike. It’s just plain not anything we can reach for.
In our proposal to you we stated that it ‘‘was not a
take-it-or-leave-it proposal’’ but rather the framework
for a settlement. If our proposal had met with a serious
response, we had intended in the subsequent negotia-
tions to add proposals in the retroactive pension area,
compensation area, squad size, minimums, and addi-
tional improvements in the other economic areas.
Your proposal seems to make that all futile. Notwith-
standing that, I believe we owe it to the people we rep-
resent to have a face-to-face meeting. With the strike
deadline only 4 days away what do we have to lose.
There is much controversy in the parties’ briefs about how
Donlan transmitted this document and when Upshaw re-
ceived it. For the purposes of resolving this issue, it is undis-
puted that Donlan sent his letter on September 17. That after-
noon Upshaw called Donlan, and they agreed that Donlan
would fly to Washington the following day and Upshaw
would meet him at the airport.
The issue concerns what they spoke about, and Upshaw
testified that Donlan mentioned hardly anything. My dif-
ficulty in accepting Upshaw’s testimony is that I cannot un-
derstand why Donlan would try so hard to get this meeting
and why he would travel to Washington to offer Upshaw as
little as Upshaw claimed. The Union contends that his trip
was made to provide cover for the publication that he had
intended to send out the next day. If it is correct, I would
have to find that Donlan’s list of items to be discussed (as
well as, in part, a report he issued to the Clubs about what
he discussed) was an absolute fraud perpetrated by him to
convince me that these offers were made on issues that the
Union argues were, at best, insignificant.
Although I may have come to certain conclusions about
Donlan, that he was cagey, that his language was slippery,
that he attempted (as a good negotiator) to avoid answers and
commitments, I certainly had no impression that he was dis-
honest. Rather, his list of areas of improvement that he said
that he raised with Upshaw was entirely consistent with the
leaflet that he had written on September 13, that his proposal
was not the final proposal and that there was still room to
negotiate. It was consistent with his letter of September 16,
that his earlier proposal was merely the framework for a set-
tlement, which he intended to add to. It was consistent with
Donlan’s expressed interest to avoid the strike and convince
the Union to agree to a new contract without the massive
changes in the free agency provisions that Upshaw sought.
Thus, it would be consistent for Donlan to prepare and re-
view his entire list while meeting with Upshaw, and I am
persuaded that he did.
Upshaw, whose testimony on this issue was often evasive,
at least agreed that Donlan had a document in front of him
that he would ‘‘occasionally’’ look at during the meeting. I
find that Donlan did more than that: he made constant ref-
erence to his list and covered it fully. Upshaw was not listen-
ing to him. Rather, Upshaw was waiting for the magic words
of movement on free agency, which really occupied his
mind. He knew that there was going to be a strike unless
movement were made in that area. He erred when he said
that Donlan did not cover all the items on his list. I will rec-
ommend that this allegation be dismissed.
E. The 8(a)(1) Threat by the Patriots
William Sullivan Jr., the former owner of the Patriots, was
a letter-writer. To convince quarterback Lin Dawson that the
strike was wrong, he forwarded to Dawson on October 5 a
letter that Sullivan had written to a fan in which he stated
that the fans were more important than either the players or
the owners and that the strike and the players were exposing
the Sullivan family to indignities and ‘‘dealing a low blow
and maybe a fatal one to the people whose respect we had
earned through years of dedicated effort.’’ The strike was
causing immense monetary damage: $600,000 had to be re-
funded to the fans for the first game, and the Patriots had
lost money from concessions income and revenues. His son,
who had borrowed heavily to install a weight room and
meeting rooms, was burdened by the strike’s financial im-
pact, no less by his hurt feelings because of the strikers’ har-
assment of those people who came to that game. The battle
was with the players, ‘‘whose loyalty, for reasons unknown
to me, apparently rest with the Upshaws of this world rather
than with the fans who have so loyally supported the team
or the Sullivans who have never made a profit while they
have paid inordinately high salaries to the noble athletes.’’
In a letter to Dawson the next day, October 6, Sullivan
forwarded another letter he had received from a fan and
called particular attention to the fan’s praise of Head Coach
Raymond Berry and asked Dawson to compare Berry with
player representative Brian Holloway, adding: ‘‘I wonder if
it will give you pause for thought. I hope so!’’ On October
8, Sullivan wrote to Dawson a lengthy diatribe, only the first
part is relevant to this proceeding:
Since you have found time to go to Newark to listen
to Jean [sic] Upshaw’s rhetoric, and then to go to Chi-
cago to hear further observations by your leader, and
you have permitted Brian Holloway to spend most of
his time stirring up trouble with our team (the same
Brian Holloway who called Raymond Berry a liar), and
who in his self-serving way has always looked out for
himself rather than the team, I hope you won’t mind if
I make a few comments to you in writing concerning
some of the recent developments which are leading to
the destruction of our franchise.
You and some of your associates have constantly
said you want to act as a unit. Apparently, the unit that
you are talking about is one which blindly follows the
likes of Upshaw and Holloway rather than the people
like Raymond Berry and the members of my family.
Initially, we concurred with your view that you
should act as a unit because I thought you understood,
and some of your associates realized, that the team was
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not merely the players but the coaches, the office staff,
the scouts and everyone else who contributed to the end
product which we call the New England Patriots.
You may recall that I particularly emphasized that
part of that team was the fans because without them we
would not need the players, coaches, the union leaders,
commissioners, television commentators, etc. Appar-
ently, I was mistaken because I felt that the majority
of people on our team felt that way—I was wrong and
I am paying that price for that stupidity in failing to
judge properly the character of our players.
Lin, each week for a number of years in driving up
from my home on Cape Cod to the games on Sunday
I have been part of a large traffic flow that came from
this part of the world to see our team play. Last Sunday
there was no traffic and perhaps it was because the
loyal supporters who had made the long trip each week
realized that the players had no regard for them so they
would indicate their disregard for the players by staying
away from the game. Evidently, your people weren’t
satisfied with that because in addition to using the
strike to cause people to seek refunds for their tickets
they were not satisfied with that alone because the loyal
fans who still came were harassed and so far as I am
concerned that is the most unfair of all labor practices
that I have ever encountered. Perhaps it could be trans-
lated into football terms by suggesting that it was a se-
ries of clips from the rear delivered by our players (act-
ing as a unit) on our fans who have paid them the
handsome salaries which they have received.
Or perhaps it was becasue [sic] they read the
Barnstable Patriot, a newspaper which is proud to bear
the name which is affixed to our team. I might say that
I am not as proud of the Patriots as I once was. Indeed,
I am ashamed of them and cannot wait the conclusion
of this event to see if I can get someone else to buy
the contracts of people who have acted in such an un-
fair manner.
Whatever one may think of Sullivan’s arguments, he has
the legal right to try to convince his players of their folly,
unless he should make such comments that coerce players in
the exercise of their rights which are protected under the Act.
One of those rights is the right to strike and the act
concertedly to protect what the players believe, for better or
for worse, they need. Sullivan had the right to disagree with
them and Upshaw and Holloway, but he had no right to
threaten them with the loss of their jobs or any other alter-
ation of their employment status. The last paragraph of the
quotation contains a clear threat to trade players by selling
their contracts, because they acted unfairly in engaging in a
strike.
Sullivan’s explanations at the hearing do not lack ingenu-
ity. In particular, Sullivan claimed that, whatever the letter
may have said, that is not what he meant. That argument
simply does not comply with Board law. He threatened that
at the end of the strike he was going to find someone to buy
the contracts of those who were disloyal to him. Getting pur-
chasers for the players’ contracts meant that the players
would be under contract to other teams and not the Patriots.
No other construction of Sullivan’s words is warranted in
light of the clarity of his threat.
Sullivan, however, contended that it was well known that
he had been in difficult financial straights for some time and
had been looking for a purchaser for the Club. That may be
so, but he was not writing about selling the entire team. He
was writing about selling the contracts of certain individual
players, about five or six, he testified, who were causing him
trouble and were not giving him the respect which he
thought was due to him. His threat was not related to what
would happen if the strike continued. He knew what that
prospect was, as he wrote much later in his letter, that the
continuation of the strike would cause him further financial
losses which might cause him to have difficulty in continu-
ing to field a team. He wrote:
I would like you to know in conclusion that if the play-
ers continue to heed the lies and deceits of the union
leadership then on each day you will continue to lessen
the value of this franchise and to leave it in a position
where its present ownership cannot afford to pay the
money necessary to field a solid competitive team. Op-
erating under the present collective bargaining agree-
ment we have lost $16,000,000 since the last strike and
we simply cannot afford to make that mistake one more
time.
In other words, Sullivan was explaining that he was going
to continue to operate the team. He was not going to give
in to the players’ demands and was asking them, for their
good as well as his, to end their strike and resume playing.
I do not credit his additional contention that his selling of
contracts was the equivalent of selling the franchise. There
is no implication that he had given any thought to the sale
of the contracts of any member of management or the coach-
es. Coach Berry was his loyal friend; the strikers were not,
although Sullivan testified that his comments were not di-
rected to those former strikers who had since crossed the
picket line. Only the then disloyal strikers’ contracts were for
sale.
Finally, I do not credit his contention that NFL policy pro-
hibited contracts to be sold, therefore, that could not have
been what he intended. When a player is traded, he does not
have to sign a new contract. His contract goes with him. The
player might be worth a future draft choice or another player.
That would constitute the consideration for the transfer of the
contract. As a player, Lin Dawson could reasonably under-
stand that the sale of contracts meant that some players
would not be playing very long for the Patriots. Furthermore,
even assuming that there is an official policy against the sell-
ing of contracts, there was no proof that the players knew
that or that Sullivan would abide by that policy. I conclude
that the Patriots violated Section 8(a)(1) of the Act.
F. The 8(a)(1) Threats by the Cowboys
The complaint alleges that the Cowboys threatened Kevin
Brooks, Tony Dorsett, Ed Jones, and Everson Walls to with-
hold various contractual moneys and benefits to coerce them
to abandon the strike and return to work in violation of Sec-
tion 8(a)(1) of the Act. Except for Walls, the players returned
to their Clubs, arguably as a result of the threats.
The threats resulted from the Cowboys’ interpretations of
the players’ contracts. Each of them was the form NFL play-
er contract which provided for the player’s annual salary and
137NATIONAL FOOTBALL LEAGUE
provided that, if the player ‘‘fails or refuses to perform his
services under this contract,’’ the contract is ‘‘tolled’’ and,
during the period of such refusal, the player will not be enti-
tled to any compensation or benefits. The Cowboys claimed
that the players’ participation in the strike constituted a fail-
ure or refusal to perform their services and enabled the Club
to withhold not only their salary but other payments due
under the contract.
1. Kevin Brooks
On July 17, 1985, Kevin Brooks signed a series of four
1-year contracts with the Cowboys for the 1985–1988 sea-
sons. The same day he also signed a deferred compensation
agreement providing that he was to be paid an additional
$500,000 in 10 equal annual installments of $50,000, begin-
ning on August 1, 1991. The agreement continued:
It is expressly understood that should Kevin Brooks re-
tire before the expiration of the 1988 season, that [sic]
he shall forfeit a pro rata share of said $500,000 de-
ferred compensation bonus on the following basis:
. . . .
Should Kevin Brooks retire before the conclusion of
the 1987 regular season he shall forfeit 50%, or
$250,000 of the $500,000 deferred bonus.
. . . .
None of the following [shall] be considered ‘‘retire-
ment’’ under the terms of this agreement:
1) Missing team meetings
2) Being late for team meetings or therapy
3) Being placed on injured reserve by the team
4) Missing games due to football injury during the
season at the instruction of the team doctor.
Brooks joined the strike at the beginning but rejoined the
Cowboys on October 7, 10 days after Cowboys’ vice presi-
dent, Bailey, forwarded to him an opinion letter from the
Cowboys’ attorneys about ‘‘your current contract status.’’
The letter stated, in part:
A provision is contained in the Compensation Agree-
ment whereby should the Player ‘‘retire’’ before certain
established periods of time, there will be a forfeiture of
a portion of the $500,000 deferred bonus. The term
‘‘retire’’ or ‘‘retirement’’ is not defined affirmatively.
However, the next to the last paragraph defines certain
events that are not to be considered ‘‘retirement’’ under
the terms of the Compensation Agreement. It is our
opinion that, by reason of the fact that the parties have
defined what is not to include retirement, other failures
on the part of Player which are indicative of ‘‘retire-
ment’’ should be deemed to be a ‘‘retirement’’ under
the Compensation Agreement. Thus, the failure to at-
tend practices and the failure to attend and perform at
games should constitute ‘‘retirement’’ within the mean-
ing of the Compensation Agreement.
However, I call your attention to the last paragraph
of the first page of the Agreement which reads: ‘‘In the
event that . . . the Club deems that Player has in fact
retired, the Dallas Cowboys, before they can create a
forfeiture under this Agreement, must give [Player] ten
days notice, by registered mail, return receipt requested
of their intention, to exercise their right to cause a for-
feiture under this Agreement. During that ten day pe-
riod, [Player] has the right to withdraw his notice to re-
tire or ‘cure the default’, in which event, no forfeiture
of any funds shall take place. . . .’’ Thus, it is our fur-
ther opinion that, in order to ‘‘trigger’’ a forfeiture, the
Club must give the Player the ten days notice by reg-
istered mail, return receipt requested, of such intention
to exercise the Club’s right to cause a forfeiture under
such Agreement. A draft of the proposed letter is at-
tached hereto.
No draft of the proposed letter was enclosed in Bailey’s
letter to Brooks.
2. Tony Dorsett
On October 2, 1985, Tony Dorsett signed a series of five
1-year contracts for the 1985–1989 seasons which provided,
among other things, for his salary, which in 1987 was
$450,000, and, in addition to other ‘‘consideration’’ paid or
payable to Dorsett, the following annual payments: from
1990-1993, $100,000, and from 1995–2014, $300,000. Para-
graph 27 of each contract provided the manner in which
these payments would be prorated:
Player, or his designated beneficiary or estate, shall re-
ceive the rights and benefits provided in this Paragraph
27 regardless of (A) Player’s football-related illness, in-
jury or death, or (B) Player’s inability (except for such
inability as is caused by illness, injury or death due to
a non-football-related cause) to exhibit sufficient skill
or competitive ability sufficient to participate in the Na-
tional Football League. However, if, during the terms of
the Contracts, (A) Player fails to report to the Club’s
training camp and practice sessions, or (B) Player fails
to perform his contractual services except for failure
caused by football-related causes, or (C) Player suffers
a non-football-related illness or injury or dies because
of non-football-related causes, or (D) any of the Con-
tracts are terminated, tolled or do not come into effect
for reasons other than any football-related illness, injury
or death or Player’s inability (except for such inability
as is caused by illness, injury or death due to a non-
football-related cause) to exhibit sufficient skill or com-
petitive ability sufficient to participate in the National
Football League, then all such rights and benefits under
this paragraph 27 shall be reduced pro rata. Such pro
rata reduction means a reduction of each of such pay-
ments so that the required payment is equal to the pay-
ment otherwise required multiplied by a fraction, the
denominator of which shall be 60 and the numerator of
which shall be the number of months which elapse
from February 1, 1985 until the occurrence of the event
which causes such reduction.
Paragraph 28 provided that the Cowboys agreed to pur-
chase real property valued at $350,000 on or before April 1,
1986, and hold it until October 1, 1990, at which time
Dorsett would have the option of purchasing it for $100 or
selling it to the Cowboys, who would pay him $750,000. His
right to receive the full undivided interest in the property or
to receive the full amount promised for 1990 was to be re-
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duced pro rata for the same reasons that would permit the
prorating of the annual payments described in the above
quotation. Finally, the contract acknowledged that the Cow-
boys had loaned Dorsett $750,000 and committed him to
repay it by October 15, 1990. However, a portion of the
debt, prorated in the manner set forth in paragraph 27, was
to become payable if the same reasons, as above, occurred.
By letter dated September 29, Tex Schramm wrote to
Dorsett, enclosing copies of letters containing the con-
sequences to Dorsett if he should refuse to play during the
strike. According to the Cowboys’ attorneys, should Dorsett
fail to report to the Cowboys’ practice sessions or fail to per-
form his contractual services, then the amounts due for an-
nual payments would be reduced pro rata. According to their
formula, the reduction was computed to be 29/60 or
$3,093,000. The same formula was applied to Dorsett’s op-
tion to buy real estate, for which Dorsett was to forfeit either
29/60 of the value of the property or his right to receive the
$750,000. Finally, there would be an immediate acceleration
of the outstanding amount of the loan. Dorsett had initially
joined the strike but, after receiving this letter, he returned
to the Cowboys on October 2.
3. Ed Jones
On December 30, 1986, Ed Jones signed two 1-year con-
tracts with the Cowboys for the 1986 and 1987 seasons. The
1987 contract provided that his salary was to be $225,000.
However, a supplemental agreement also provided:
2. 1987 Contract. In addition to the compensation of
$225,000.00 set forth in Paragraph 5 of Player’s 1987
Contract, Club will pay Player:
A. Four (4) consecutive annual payments of
$75,000.00 consisting of quarterly payments of
$18,750.00 each beginning March 31, 1989 and ending
on December 31, 1992.
B. Twenty (20) consecutive annual payments of
$33,333.34 consisting of monthly payments of
$2,777.78 each beginning Jan. 1, 1996 and ending on
Dec. 31, 2015.
3. Player will receive the additional compensation set
forth in Paragraph 2 if Player is on Club’s active roster
for the 1987 Football Season or is placed on Club’s In-
jured Reserve at any time during the 1987 Football Sea-
son including training camp. Player will not receive
such additional compensation if Player retires, refuses
to play or report to Training Camp, or does not make
Club’s final active roster for the 1987 Football Season.
On September 29, Bailey forwarded to Ed Jones and his
agent an opinion letter from the Cowboys’ attorneys concern-
ing Jones’ failure to report for practice sessions from Sep-
tember 22 to the date of the letter. Noting that Jones was en-
titled to receive two separate series of deferred payments in
addition to his 1987 compensation to be paid that year, the
attorneys opined that, because the agreement provided that
Jones would not receive the extra compensation ‘‘If Player
. . . refuses to play . . . for the 1987 Football Season,’’
Jones was not entitled to any of the additional compensation.
4. Everson Walls
On May 18, 1987, Everson Walls signed four 1-year con-
tracts for the 1986–1989 seasons. His 1987 salary was
$350,000, and the Cowboys also agreed to pay him deferred
compensation and a reporting bonus, as follows:
24. In addition to the compensation of three hundred
fifty thousand dollars ($350,000.00) set forth in Para-
graph 5, if at any time during the period November 1
through November 7 of the current contract year, (ex-
cept for failure caused by football-related causes or by
this contract and paragraph being terminated, tolled or
not coming into effect for reasons other than any foot-
ball-related illness, injury or death or Player’s inability
to exhibit sufficient skill or competitive ability suffi-
cient to participate in the National Football League),
Player is on Club’s active squad or injured reserve,
Club will pay to Player, or in the event of Player’s
death, to Player’s stated beneficiary, or if none, to Play-
er’s estate, thirty (30) equal consecutive annual install-
ments of twenty-eight thousand dollars ($28,000.00)
each. These installments shall commence on November
1, 1996, and shall terminate after the final installment
has been paid on November 1, 2025.
26. For the 1987 season only, the following applies:
In addition to the sum of three hundred and fifty thou-
sand dollars ($350,000.00) set forth in Paragraph 5,
Club will make a payment of one hundred-thousand
dollars ($100,000.00) to Player on the date of his re-
porting to pre-season training camp in July as per
Club’s instructions to veteran players and Player must
pass the Club’s training camp physical. However, if
Player fails to practice, play, or to perform his contrac-
tual services except for failure caused by football-relat-
ed causes, or player suffers a non-football-related ill-
ness or injury or dies because of non-football-related
causes or any of the contracts are terminated, tolled or
do not come into effect for reason [sic] other than any
football-related illness, injury or death or player’s in-
ability (except for inability as is caused by illness, in-
jury or death due to a non-football-related cause), to ex-
hibit sufficient skill or competitive ability sufficient to
participate in the National Football League, then all
such rights and benefits due player by Club shall be re-
duced by said amount.
An addendum provided, in part:
1. In the event Player is unable to pass Club’s 1987
pre-season physical as a result of a 1986 season football
injury, Club will pay Player the annual installments he
would otherwise have qualified to receive under Para-
graph 24 of Player’s 1987 NFL Player Contract.
2. In the event Player retires or is traded or released
by the Club before November 1, 1987, so that he does
not complete performance of Player’s 1987 NFL Player
Contract, Club agrees, if Player so desires, to obtain
from reputable insurance company of Club’s selection
an insurance policy which will provide Player the de-
ferred payments he would otherwise have received
under Paragraph 24 of Player’s 1987 NFL Player Con-
tract provided:
139NATIONAL FOOTBALL LEAGUE
A. Player is insurable and Player pays on or before
November 1, 1987, the premium on the insurance pol-
icy in an amount not to exceed one hundred twenty
thousand dollars ($120,000.00).
B. Player is not entitled to receive such payments in
accordance with Paragraph 1.
On September 30, Bailey wrote to Walls and his agent,
Steve Weinberg, stating that he had received inquiries from
other players about the ramifications of the strike and he felt
that, even though they had not inquired, it was his obligation
to advise them, too. Like the other letters, the enclosed attor-
neys’ opinion letter did not spare any threats of an adverse
financial impact. The attorneys stated that Walls’ contract
had been designed with a view that there would be a strike
and that Walls would join the strike and not perform his con-
tractual services. The letter stated that Walls would have to
return $100,000 that the Cowboys paid when he reported to
the training camp that summer. He would lose all of his de-
ferred compensation of $840,000 under paragraph 24, quoted
above, and his game pay for each game that he missed as
a result of the strike.
Walls was the only player who did not return to the Cow-
boys upon receipt of the Club’s communication. However,
the Cowboys did not withhold any moneys from Walls, ex-
cept for his game salary, as to which the General Counsel
makes no complaint.
5. Discussion
The Cowboys threatened to withhold payments of substan-
tial sums from the four players if they opted to continue
striking. The right to strike, as noted above, is protected by
Section 7 of the Act. It may be waived only if the individual
player contracts clearly and unmistakably waived the players’
right to strike. Texaco, Inc., 285 NLRB 241 (1987); Amoco
Oil Co., 285 NLRB 918 (1987). The General Counsel con-
tends that the threats to withhold contractual payments be-
cause the players were on strike are illegal because the play-
ers never waived their right to strike. The Club frames the
issue differently: ‘‘whether the players have a right to both
strike and receive deferred salary and other compensation
that contractually is contingent upon the players’ provision of
services to the Cowboys.’’
The Cowboys, no less than any other Club, had no respon-
sibility to support the Union’s strike. The Cowboys did not
have to pay their players when the players voluntarily with-
drew their services. The pertinent issue is whether the
amounts that the Cowboys threatened to withhold were di-
rectly related to their salary for the missed games or whether
the Cowboys were otherwise permitted to withhold the pay-
ments because of other valid clauses in the players’ con-
tracts. I conclude that the Cowboys violated the Act, because
the actions of the Club had the inherent tendency to inhibit
the players’ participation in protected and concerted activity.
The allegations involving Brooks are the simplest to re-
solve. Brooks was to be paid a deferred bonus of $500,000
unless he retired before the end of the 1987 season. ‘‘Re-
tired’’ is not defined, except that there are four events which
the contract states will not be considered a retirement, in-
cluding missing games because of an injury. The contract
does not forbid Brooks from striking, but the Cowboys none-
theless argue that his honoring the picket line is a retirement.
I disagree. With the parties’ agreement of what would not
constitute a retirement, I cannot avoid the normal meaning
of the word to give it some new meaning which would not
coerce employees from engaging in activities protected by
the Act. Webster’s Ninth New Collegiate Dictionary defines
retirement as ‘‘withdrawal from one’s position or occupation
or from active working life.’’ There is a permanence about
the withdrawal, and not the mere transient activity of a strike
of short duration.
Under the Cowboys’ argument, Brooks’ injury for a period
of 3 weeks would not be a retirement because it is one of
the events that the contract states is not considered a retire-
ment, but his illness of 1 week would be a retirement be-
cause it is not one of the four events that are not considered
a retirement. I simply cannot agree with such a forced inter-
pretation of the agreement and the plain meaning of the
word. All that Brooks did was engage in an economic strike.
Section 2(3) of the Act includes within its definition of ‘‘em-
ployee’’ an individual ‘‘whose work has ceased as a con-
sequence of, or in connection with, any current labor dispute
. . . and who has not obtained any other regular and sub-
stantially equivalent employment.’’ Laidlaw Corp., 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). There
is no suggestion that Brooks obtained employment with any-
one else, and he continued to be an employee, not a retiree.
The Cowboys also argue that no matter how one would in-
terpret the word ‘‘retire,’’ the letter was not a threat because
Brooks’ contract required the Cowboys to give him 10 days’
notice of forfeiture and that he then had the right to cure any
default within those 10 days. The Cowboys contend that the
letter merely was an opinion of what the team could do rath-
er than the actual exercise of the team’s right to cause a for-
feiture. As admirable as this purpose may have been, the
Cowboys knew that Brooks was a football player and not ex-
pected to have a legal degree. Even to a lawyer, a reading
of the document expresses a threat that one-quarter of a mil-
lion dollars would be lost if Brooks remained on strike.
Sophistry is no substitute for the clear intent of this docu-
ment to get Brooks off the picket line and back to the play-
ing field.
To the same extent, the Cowboys’ attorneys completely
misconstrued Jones’ contract in order to force him to return
from the strike. To repeat what I have stated above, I have
no difficulty with the concept that an employer has no duty
to pay an employee if he strikes and does not perform his
work. What the Cowboys tried to do, however, was punish
its players for engaging in protected and concerted activities.
Instead of relating the amount Jones was to forfeit to his sal-
ary and to a proportion of his deferred compensation, the
Cowboys construed Jones’ contract to mean that if he missed
one game, he forfeited everything. According to the letter,
Jones forfeited his base salary of $225,000, plus his deferred
compensation of $966,666 ($300,000 from 1989 to 1992 and
$666,666 from 1996–2015), a total of $1,191,666. For miss-
ing the first strike game, 1 of 16 games of the year, the
Cowboys threatened to take away almost a million dollars,
more than 80 percent of his pay, plus, of course, the per
game rate of one-sixteenth of $225,000, a clearly Draconian
penalty. It is more than Draconian. It is unjustified by any
reasonable reading of the contract, which was clearly in-
tended to protect the Cowboys from paying any deferred
compensation if Jones did not make the team, or retired, or
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
refused to report to training camp or refused to play the sea-
son.
The Cowboys made the same unreasonable and irrational
assumption regarding Dorsett. That Dorsett joined the strike
for a few days would be the end of his football career. For
not showing up at one game, he would lose $4 million, more
than 2 years of future benefits, and he was still bound, if he
quit the strike, to play for the Cowboys, but only for his base
salary. Surely, that was not contemplated by the parties.
Both Dorsett’s and Walls’ contracts provide that, if the
player fails to perform his contractual services, ‘‘except for
failure caused by football-related causes,’’ then the deferred
yearly payments shall be reduced. If the basis of the Cow-
boys’ defense is that it was not required to pay wages for
services not voluntarily performed, then it is understandable
that it would not pay the salary for that game, to wit, one-
sixteenth of the year’s compensation, plus any deferred com-
pensation which was directly attributable to the game that
was missed. The Cowboys’ position was wrong because its
threat was so far removed from the wages for any single
game that it was totally unreasonable. It was a penalty, im-
posing such a loss of money for remaining on strike that it
tended to coerce the players to rethink their position of sup-
port for the Union’s collective action.
Furthermore, the threat to Walls of the loss of his annual
payments utterly omits the contractual language that Walls
was entitled to those installments of $840,000 if he was on
the Cowboys’ active or injured reserve rosters during the pe-
riod of November 1 through 7. The Cowboys’ letter was
dated at the end of September; and if Walls was to lose any
of his deferred payments under paragraph 24, clearly the
Cowboys threatened him much too early.
With this kind of thoughtless and unjustified action, it is
difficult to take seriously Bailey’s explanation for his threat
to recapture Walls’ $100,000 reporting bonus. It is true that
Walls’ agent unsuccessfully attempted to insert in the con-
tract a provision which would specifically exclude Walls’
participation in the Union’s strike as an excuse for the Cow-
boys not to pay any amounts (other than base wages) other-
wise due under the contract. However, while Bailey would
not agree to such an exclusion, he agreed that the labor laws
would govern whether Walls would receive these payments.
The negotiating history reveals that, starting in 1986,
Walls renegotiated his 1986 and 1987 agreements, which had
left open the amounts that he was to receive for those 2
years. One of his demands was for more money ‘‘up front,’’
and it would certainly would not have been baseless for the
Cowboys to contend that some of the reporting bonus was
actually salary. But the Cowboys did not link their threats to
salary. Rather, the penalty that they sought to impose was
not reasonably related to salary or to the games missed by
Walls.
Finally, the Cowboys argue that their letter was only a
prediction of what would happen if Walls remained on strike
in the future, noting that the letter begins:
Our firm has been asked by the Dallas Cowboys to
review Everson Walls’ 1987 NFL Player Contract to-
gether with the Addendum to his Player Contract to de-
termine the financial impact upon Everson Walls, if he
remains on strike and does not perform his contractual
services and to practice and play for the Dallas Cow-
boys.
There was no language later in the letter predicting any-
thing. All threats were couched in the present because of acts
which had already occurred. The attorneys wrote that Walls
‘‘has sustained the following financial impact’’ for his failure
to practice and perform for the Cowboys. Regarding the
$100,000 reporting pay, the attorneys wrote that Walls ‘‘will
have to return’’ the money. Regarding the deferred pay, they
wrote that he ‘‘has forfeited the deferred compensation.’’ I
find that by sending this letter, the Cowboys did not intend
to casually predict future punishment. They intended to send
a very clear message setting forth all the monetary penalties
that they intended to impose if Walls continued to strike.
That threat was finite and immediate.
I find that the Cowboys violated Section 8(a)(1) of the Act
in all respects alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondents set forth above, occurring in
connection with their operations described above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondents engaged in certain unfair
labor practices, I shall recommend that they be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Specifically, I
shall recommend that Respondents make whole all of their
players who offered to return or for whom the Union offered
to return to play in the games scheduled for October 18 and
19 for any loss that they may have suffered as a result of
Respondents’ discrimination against them. Backpay shall be
in an amount equal to the pay for one game, to wit, one-
sixteenth of the player’s annual wages, and interest shall be
added thereto, to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
The identity of these players may raise problems. Not all
the almost 1100 striking players appeared at their teams’ fa-
cilities on October 15 and 16. Some were out of town. They
may not have been able to have returned to their teams in
order to prepare for the games, which I find, adopting the
testimony of Stan White, would be no later than 9 a.m. local
time, on Saturday, October 17, for those playing on Sunday,
and 9 a.m. on Sunday for those playing on Monday. That
would have given the players who had home games all day
to learn a game plan. Players might have had to report earlier
for away games, as, for example, the Rams’ players who re-
ported on Friday morning, the day that they were leaving for
Atlanta. All questions of eligibility for backpay under this
decision will be referred to the compliance proceedings.
The General Counsel and the Union also request that the
players, in order to be made whole, should be given a pro
rata adjustment of any of the incentives set forth in the em-
ployees’ contracts which may have been adversely affected
by the exclusion of these employees from these games. This
request is warranted. Many players receive extra moneys if,
141NATIONAL FOOTBALL LEAGUE
53 Playoff spots are sometimes selected by matching the total num-
ber of points scored. I do not know whether it was the intention of
the General Counsel and the Union to improve the possibility of one
team’s qualification by making it the winner of their fictional game
by 500 points.
54 I requested the General Counsel to submit a proposed order set-
ting forth the entire relief that he sought in this proceeding. He did
not include therein, and I have not considered, the claim for attor-
neys’ fees incurred by Walls in answering the Cowboys’ threat.
for example, they gain a certain number of yards during the
season or make a certain number of tackles. Respondents’ re-
fusal to permit the players to play in the October 18 and 19
games may have adversely affected the players’ ability to
reach the number which they would have to attain to be eli-
gible for their incentive bonus. To the extent that these can
be calculated, the players shall be awarded an amount equal
to the average of the amount of the pertinent category of
football accomplishments, to wit, tackles, completed passes,
running yardage, minutes played, etc., computed from the
games that the players played. Interest computed as set forth
above shall be added to these amounts.
Finally, the General Counsel and the Union contend that
the players should also reimbursed playoff moneys for the
players of any teams that did not qualify for the playoffs but
might have qualified under any permutations or combination
of results had the outcome of the October 18 and 19 games
been different. The gist of this request is that if the strikers
had been allowed to return and to play that weekend, the re-
sults of the games would have been different. There is, how-
ever, not the slightest bit of proof that the result of any game
would have changed, nor has there even been a showing that
even if I were to hypothetically change the results of all the
games that weekend, the final results in any of the divisions
would have changed. The relief that is being asked for is to
selectively alter the results of the games to permit any team
which did not make the playoffs to make the playoffs, with
the possible curious result that many more teams might have
made the playoffs than there were spots to qualify.53 Board
relief is intended to make discriminatees whole for their rea-
sonable losses and not to reward them with speculative en-
richment. I deny the relief, noting my surprise that the Gen-
eral Counsel and the Union did not ask in addition for a re-
computation of the results of the playoffs, thus making every
team eligible for Super Bowl money and rings, which is just
as speculative as the relief sought and is the natural con-
sequence of what they seek as a remedy.
I shall also recommend that Respondents make whole all
of their players who were on injured reserve status and who
were not paid their game checks during the strike. They are
entitled to four game checks, unless a lesser number is set
forth below, during the strike: James Demerritt (one), Tim
Richardson, Tim Wrightman, Lew Barnes (one), Steve
Fuller, Albert Bell (three), Derrick Crawford, Brad Booth,
Nick Haden, Dupre Marshall, Martin Booker, Steve DeLine,
John Klingel, Ken Lambiotte, Mike McCloskey, Ron Moten,
Alan Reid, Ben Tamburello, James Geathers, Chris Godfrey,
Mike Hamby (three), Jeff Price, Jeffrey Nowinski, Woodrow
Lowe (one), Mark Mullaney (two), and Robin Sendlein. In-
terest will be added to the amounts due, in the manner pre-
scribed as set forth above.
The General Counsel has requested that the Cowboys ex-
punge the threats that they issued to Brooks, Jones, Dorsett,
and Walls and notify them that they will not enforce the
threats. The Cowboys specifically oppose this relief, but I
find it clearly warranted. Although none of the threats have
been enforced, the players should be advised that these
threats, which involve a potential penalty of millions of dol-
lars, never will be enforced. Sterling Sugars, Inc., 261 NLRB
472 (1982).54
Finally, the General Counsel seeks a broad cease-and-de-
sist order. Although there is little question that the backpay
required under my order will amount to millions of dollars,
the unfair labor practices found are not so egregious or wide-
spread as to demonstrate a general disregard for the employ-
ees’ fundamental statutory rights. Rather, Respondents’ re-
fusal to permit the players to return to work and its withhold-
ing of their pay for that weekend was a one-time discrimina-
tory act with a rule that had its inception only several weeks
before and, once the strike had terminated, lapsed into obscu-
rity, but for the continuing litigation in this proceeding. Simi-
larly, the failure to pay the injured reserve players no doubt
was serious, but hopefully will be adequately corrected by
the specific relief granted herein. The other violations found
are not major. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]