The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1178
PARTS DEPOT, INCORPORATED,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
------------------------------
UNITE HERE,
Respondent - Intervenor.
No. 07-1290
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
PARTS DEPOT, INCORPORATED,
Respondent.
------------------------------
UNITE HERE,
Intervenor.
On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (12-CA-16449; 12-CA-
16741)
Argued: December 4, 2007 Decided: January 7, 2008
Before KING and SHEDD, Circuit Judges, and Henry F. FLOYD, United
States District Judge for the District of South Carolina, sitting
by designation.
Petition for review denied; cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: Cathy M. Stutin, FISHER & PHILLIPS, L.L.P., Ft. Lauderdale,
Florida, for Parts Depot, Incorporated. Christopher Warren Young,
NATIONAL LABOR RELATIONS BOARD, Office of the General Counsel,
Washington, D.C., for the Board; Brent Garren, UNITE HERE, New
York, New York, for Unite Here. ON BRIEF: Charles S. Caulkins,
FISHER & PHILLIPS, L.L.P., Ft. Lauderdale, Florida, for Parts
Depot, Incorporated. Ronald Meisburg, General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Assistant General Counsel, Robert
J. Englehart, Supervisory Attorney, Tracie C. Robinson, Student
Intern, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the
Board. David M. Prouty, UNITE HERE, New York, New York, for Unite
Here.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Parts Depot, Inc. petitions for review of a supplemental order
of the National Labor Relations Board (the “Board”) awarding
backpay to four former Parts Depot employees. The Board cross-
applies, seeking enforcement of its order. Because we find no
abuse of discretion in the Board’s backpay order, we grant
enforcement and deny Parts Depot’s petition for review.
I
In 2000, the Board found that Parts Depot violated sections
8(a)(1), (3) and (5) of the National Labor Relations Act (“NLRA” or
the “Act”), 29 U.S.C. §§ 8(a)(1), (3) and (5), when it laid off 14
employees in 1994 without first bargaining with Unite Here, the
designated collective bargaining representative of Parts Depot’s
employees. The Board ordered Parts Depot to provide backpay and
offer reinstatement, and that order was enforced by the Court of
Appeals for the District of Columbia Circuit. See Parts Depot,
Inc., 332 NLRB 670 (2000) and 332 NLRB 733(2000), enforced, 24 Fed.
Appx. 1 (D.C. Cir. 2001).
The Board then initiated the present backpay proceedings. A
hearing was held before an Administrative Law Judge (“ALJ”), and
the Board ultimately awarded backpay to claimants Isabel Martinez,
Aundria McGregor, Angela Wilson, and Altonia Wright. In this
petition, Parts Depot challenges all four awards on due process
3
grounds and the awards to Martinez, McGregor, and Wilson for lack
of substantial evidence.1
II
Section 160(c) of the Act expressly grants the Board the
authority to award backpay as a means to restore the situation “as
nearly as possible, to that which would have obtained but for” an
employer’s illegal conduct. Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941). Because “backpay is within the ‘empiric process
of administration’ Congress has entrusted to the expertise of the
Board,” we review the Board’s backpay order for an abuse of the
discretion lodged in the Board. Coronet Foods, Inc. v. NLRB, 158
F.3d 782, 798 (4th Cir. 1998) (quoting Phelps, 313 U.S. at 194).
In doing so, we must affirm the Board’s interpretations of the NLRA
if they are “rational and consistent with the Act,” and we must
affirm the Board’s factual findings if they are “supported by
substantial evidence on the record considered as a whole.” Medeco
Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir.
1998)(internal citations and quotations omitted). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consol. Diesel Co. v.
NLRB, 263 F.3d 345, 351 (4th Cir. 2001) (internal quotation and
1
Backpay due the other ten laid-off employees is not at issue
in this appeal.
4
citation omitted). If substantial evidence exists, we must uphold
the Board’s decision “even though we might have reached a different
result had we heard the evidence in the first instance.” NLRB v.
Daniel Const. Co., 731 F.2d 191, 193 (4th Cir. 1984).
III
A.
Parts Depot’s first argument on appeal is that it was denied
due process by several evidentiary and procedural rulings of the
ALJ. Parts Depot identifies five rulings it contends deprived it
of due process: (1) the ALJ’s restriction of Parts Depot’s
questioning of the Board’s Compliance Officer; (2) the ALJ’s
restriction of Parts Depot’s questioning of the claimants; (3) the
ALJ’s exclusion of certain aspects of the testimony of Parts
Depot’s expert witness; (4) the ALJ’s refusal to fully enforce
Parts Depot’s subpoenas; and (5) the ALJ’s refusal to allow Parts
Depot to amend its answer after the start of the hearing.
ALJs are accorded significant discretion in controlling the
hearing and the development of the factual record in cases before
them. See, e.g., Victor’s Café 52, Inc., 338 NLRB 753, 756-57
(2002). The record before us supports the Board’s conclusion that
the ALJ’s evidentiary rulings properly restrained Parts Depot from
pursuing arguments without basis in Board law and served to limit
the presentation of cumulative, irrelevant, and superfluous
5
testimony. Likewise, the ALJ was within his discretion to restrict
enforcement of Parts Depot’s subpoenas to matters relevant to the
issue of backpay and to decline to permit Parts Depot to amend its
answer after the start of the hearing to assert a new affirmative
defense in the absence of a showing that Parts Depot could not have
pled this defense earlier. These rulings did not deprive Parts
Depot of due process and provide no basis for refusing to enforce
the Board’s order.
B.
Parts Depot next argues that the Board’s backpay awards to
Martinez, McGregor, and Wilson are not supported by substantial
evidence.
Parts Depot makes two primary arguments concerning Martinez.
First, it argues that there is no substantial evidence that
Martinez exercised reasonable diligence in seeking a job after
being laid off. See NLRB v. Pepsi Cola Bottling Co. of
Fayetteville, 258 F.3d 305, 311 (4th Cir. 2001) (“Where an employer
demonstrates that an employee did not exercise reasonable diligence
in his or her efforts to secure interim employment, then it has
established that the employee has not properly mitigated his or her
damages.”) (internal quotation and citation omitted). We find that
the work and interim earnings reports submitted by Martinez and her
testimony at the hearing constitute substantial evidence in support
6
of the Board’s conclusion that she was either employed or
diligently seeking employment throughout the backpay period.
Second, Parts Depot argues that all of Martinez’s backpay
should have been disallowed because she concealed earnings from her
job at the Night and Day Laundry. See Ad Art, Inc., 280 NLRB 985,
986 (1986) (“denial of backpay in all cases of willful concealment
most forcefully and effectively serves to promote the integrity of
the Board’s compliance processes”) (Chairman Dotson, concurring).
Instead of denying all backpay, the Board denied Martinez backpay
for each quarter that she concealed her income, an approach
consistent with Board precedent. See Am. Navigation Co., 268 NLRB
426, 428-29 (1983). The Board has “broad discretion” in selecting
remedies, even when an award accrues to the benefit of a claimant
who has testified falsely in a Board proceeding. See ABF Freight
Sys., Inc. v. NLRB, 510 U.S. 317, 325 (1994). Because the Board’s
decision not to disallow all of Martinez’s backpay was within its
broad discretion, we decline to set it aside on appeal.
Parts Depot next argues that McGregor’s backpay award cannot
be sustained because he unjustifiably quit several jobs during the
backpay period. A claimant’s willful loss of earnings is an
affirmative defense to backpay liability. See Pepsi Cola, 258 F.3d
at 310. However, a claimant is not required to accept or retain
interim employment that is substantially more onerous than the job
he was laid off from, is unsuitable, or threatens to become so.
7
Nor is a claimant required to accept or retain interim employment
that entails greater exposure to environmental hazards or hardships
that were not present in his previous job. See, e.g., Chem Fab
Corp., 275 NLRB 21, 24 (1985) enforced, 774 F.2d 1169 (8th Cir.
1985). The Board concluded that because each of the jobs McGregor
quit involved conditions more onerous than his warehouse job with
Parts Depot, he was not required to accept them in the first place,
and therefore his resignation from those jobs was reasonable.
We hold that the Board’s determination is supported by
substantial evidence. The record demonstrates that McGregor quit
his job at Florida Smoked Fish because the job required him to work
with fish and “constantly be[] in water.” J.A. 273. He also left
a job with Jamo, Inc., a concrete company, because he was “inhaling
the chemicals that were used to make the cement” and because he was
“having problems getting [the chemicals] off [his] skin.” J.A.
291, 293. He left his job with Carnival Fruit Company because it
required him to work at “zero temperature” with the result that he
had frequent colds. J.A. 299. Having been unlawfully laid off by
Parts Depot, McGregor was not required to accept or remain in these
less desirable employment conditions.
Finally, Parts Depot challenges the backpay award to Wilson,
claiming that Wilson unjustifiably quit a job at Unicco Service
Company because it required overnight hours and at GP Plastics
Corporation because it was too much work. Parts Depot did not make
8
these arguments before the Board, and therefore we lack
jurisdiction to consider them. 29 U.S.C. § 160(e).2
IV
Because we find no abuse of discretion in the Board’s
supplemental order, we deny Parts Depot’s petition for review and
grant the Board’s cross-application for enforcement of its order.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
2
Parts Depot also argues that the Board’s method for
calculating the claimants’ interim earnings was unreasonable. The
Board took annualized statements of each claimant’s earnings and
divided these by four to produce quarterly interim earnings, which
it then deducted from quarterly gross backpay to determine net
backpay. Parts Depot argues that the Board was required to
calculate more accurately the quarterly earnings of the claimants
during the backpay period by determining interim earnings on a
quarterly basis. The Board determined that Parts Depot’s suggested
method would be impractical in cases like this one, where exact
employment dates over a ten-year period cannot be precisely
determined. J.A. 128 n.8. We find no abuse of discretion in the
Board’s conclusion or method of calculating backpay.
9