noting that “[t]he Board may resolve any doubts against” the employer
How later courts described this case
- noting that “[t]he Board may resolve any doubts against” the employer
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1182
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
PESSOA CONSTRUCTION COMPANY,
Respondent.
No. 15-1251
PESSOA CONSTRUCTION COMPANY,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (05-CA-034547;
05-CA-034761; 05-CA-035083)
Argued: October 27, 2015 Decided: December 21, 2015
Before TRAXLER, Chief Judge, WILKINSON and DUNCAN, Circuit
Judges.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: David A. Seid, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Petitioner/Cross-Respondent. Michael E.
Avakian, WIMBERLY, LAWSON & AVAKIAN, Washington, D.C., for
Respondent/Cross-Petitioner. ON BRIEF: Richard F. Griffin, Jr.,
General Counsel, Jennifer Abruzzo, Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, Robert J. Englehart, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Petitioner/Cross-Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Pessoa Construction Company (“Pessoa”) discharged its
former employee, William Membrino (“Membrino”), from his
position as a Commercial Motor Vehicle (“CMV”) driver in 2008.
The National Labor Relations Board (the “Board”) found that
Pessoa had discharged Membrino for engaging in union activities,
in violation of §§ 8(a)(1) and (a)(3) of the National Labor
Relations Act (“NLRA”), see 29 U.S.C. §§ 158(a)(1) and (a)(3),
and ordered Pessoa to reinstate Membrino with backpay plus
interest. We enforced the Board’s order. See Pessoa Constr.
Co. v. NLRB, 507 Fed. Appx. 304 (4th Cir. 2013) (per curiam).
In supplemental proceedings, the Board has now ordered
Pessoa to pay Membrino $95,046.07, plus interest, in backpay.
Pessoa petitions for review, asserting that its backpay
liability should be $24,054. The Board applies for enforcement
of its supplemental order. We deny Pessoa’s petition for review
and grant the Board’s application for enforcement.
I.
Under 29 U.S.C. § 160(c) of the NLRA, the Board is granted
broad, but not unlimited, authority, to award backpay to an
employee who has been fired for engaging in union activities.
See Coronet Foods, Inc. v. NLRB, 158 F.3d 782, 788, 798 (4th
Cir. 1998). The goal is “to restore the situation ‘as nearly as
possible, to that which would have obtained but for the
3
[employer’s] illegal discrimination.’” Id. at 798 (quoting
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941)).
Because “backpay is within the ‘empiric process of
administration’ Congress entrusted to the expertise of the
Board,” “we review the Board’s backpay order for an abuse of . .
. discretion.” Id. (quoting Phelps, 313 U.S. at 194); see id.
at 789 (noting that “the Board’s choice of remedy, resting on
the Board’s ‘fund of knowledge all its own,’ must be given
special respect by reviewing courts” (quoting NLRB v. Gissel
Packing Co., 395 U.S. 575, 612 (1969)). “We must enforce the
Board’s chosen remedy unless it is arbitrary, capricious, or
manifestly contrary to the statute.” Id. at 788 (internal
quotation marks omitted). “The [Board’s] findings of fact must
stand if ‘supported by substantial evidence on the record
considered as a whole.’” Id. (quoting 29 U.S.C. § 160(f)).
“Only in very clear circumstances should courts override the
Board’s findings in th[is] area.” Id. at 799.
Ordinarily, an unlawfully discharged employee is awarded
backpay from the date of the unlawful discharge to the date the
employer offers valid, unconditional reinstatement. See NLRB v.
Waco Insulation, Inc., 567 F.2d 596, 603 (4th Cir. 1977).
However, “[e]mployees who lose their jobs as a result of unfair
labor practices must mitigate their damages by seeking interim
employment.” Coronet, 158 F.3d at 800. The employee “need not
4
actually obtain work,” but he “must make . . . a reasonable
effort to obtain interim employment.” Id. (internal quotation
marks omitted). A claimant’s willful loss of interim earnings,
such as when he voluntarily resigns employment without good
cause, tolls the backpay period. See NLRB v. Pepsi Cola
Bottling Co., 258 F.3d 305, 310 (4th Cir. 2001). Similarly,
“[a]n employee who willfully loses employment by engaging in
deliberate or gross misconduct is not entitled to backpay for a
resulting earnings loss.” Id. at 311 (internal quotation marks
omitted).
In all cases, however, it is the offending employer’s
burden “to establish any affirmative defense which would lessen
the amount of backpay owed to the victims of its unlawful
practices.” NLRB v. Mining Specialists, Inc., 326 F.3d 602, 605
(4th Cir. 2003). “And any doubts arising with regard to alleged
affirmative defenses are to be resolved against the employer who
committed the unfair labor practice.” Id.; see also Coronet,
158 F.3d at 800 (noting that “[t]he Board may resolve any doubts
against” the employer).
II.
Membrino has worked as a commercial truckdriver since the
early 1990s and, in this capacity, held a Class A commercial
drivers license (“CDL”) authorizing him to drive a variety of
commercial vehicles. Membrino began working at Pessoa, a
5
highway construction contractor, in approximately 2003 or 2004.
He left in June 2006 for another job, but returned at Pessoa’s
request in June 2007. On October 23, 2008, shortly after the
Laborers’ International Union of North America successfully
unionized Pessoa’s employees, Pessoa fired Membrino for his
participation in union activities, in violation of the NLRA.
The Board subsequently ordered Pessoa to reinstate Membrino with
backpay, but he was not offered reinstatement until February 8,
2013, shortly after we affirmed the Board’s original order.
Pursuant to the safety regulations of the Federal Motor
Carrier Safety Administration (“FMCSA”) of the United States
Department of Transportation (“DOT”), a CMV driver is required,
among other things, to undergo a medical examination and obtain
a medical examiner’s certificate that he or she is physically
qualified to safely operate a CMV. See 49 C.F.R. §§
391.11(b)(4), 391.41, 391.43, & 391.45. The driver must be
medically certified every 24 months. See 49 C.F.R.
§ 391.45(b)(1). However, if the driver’s “ability to perform
[his or her] normal duties has been impaired by a physical or
mental injury or disease,” medical certification is again
required. 49 C.F.R. § 391.45(c). A driver is not qualified to
drive if he has a “current clinical diagnosis of myocardial
infarction, angina pectoris, coronary insufficiency, thrombosis,
or any other cardiovascular disease of a variety known to be
6
accompanied by syncope, dyspnea, collapse, or congestive cardiac
failure.” 49 C.F.R. § 391.41(b)(4).
Membrino’s CDL license was valid as of October 24, 2008,
the first day after his unlawful termination by Pessoa, and he
immediately began to search for interim employment as a CMV
driver. On November 3, 2008, however, Membrino experienced
chest pain and numbness in his arms. He was diagnosed with
unstable angina pectoris, acute ischemic heart disease, and
hypertension. He underwent a coronary angiography, and an
angioplasty to treat the condition. On November 4, Membrino was
released from the hospital with a prescription for high blood
pressure and cholesterol. He was advised to refrain from
driving for two days and from heavy lifting for two weeks, and
was told to follow-up with his physician in 1-2 weeks.
On November 29, 2008, Membrino resumed his search for
interim employment. He initially had no luck, but ultimately
secured six interim terms of employment, the last of which he
opted to continue instead of accepting Pessoa’s offer of
reinstatement.
Membrino landed his first interim job with Portable Storage
in April 2010. As the final step in the hiring process,
Membrino was required to pass the DOT medical examination and
receive the medical examiner’s certification (the “DOT card”)
required under the FMCSA regulations to drive a CMV. On April
7
23, 2010, Membrino passed the physical and received his DOT
card. However, Membrino received only a temporary, 3-month card
due to his diagnosis of hypertension. Membrino began working
for Portable Storage on April 27. One week later, however,
Portable Storage eliminated his position, which had been newly
created, because the route was not cost-effective. 1
On May 14, 2010, Membrino successfully applied for a
position with Aggregate Industries. Aggregate likewise required
Membrino to complete a DOT physical and obtain a new DOT card.
Membrino again passed the physical, and was again given a
temporary 3-month DOT card due to his hypertension. Membrino
began working for Aggregate on June 2, 2010, and he passed at
least one additional DOT physical thereafter. On December 17,
however, Membrino was fired after he backed his truck into a
tree. He began working at Cylos, Inc., on December 21, 2010,
but was fired on December 30, for leaving work without draining
the water lines in his truck. Membrino claimed that the
mechanic was aware of the water in the lines and had assured
Membrino that he would drain them, but Membrino was terminated
nonetheless.
1 A Portable Storage witness testified that Membrino was
fired for failing to report for work for three consecutive days.
However, the ALJ credited Membrino’s version of the events
because the Portable Storage witness had no personal knowledge
about the circumstances that led to Membrino’s departure.
8
On February 25, 2011, Membrino was hired by AD&C Management
Company, where he remained until he voluntarily left to begin
work for Reddy Ice. He worked for Reddy Ice from June 1, 2011,
until the end of July 2011, when he was hired by the Washington
Suburban Sanitary Commission (“WSSC”). He began working at WSSC
on August 1, 2011. By the time Pessoa made its valid offer to
reinstate Membrino on February 8, 2013, Membrino’s income from
WSSC was effectively eliminating Pessoa’s backpay liability.
Membrino declined the offer of reinstatement.
A compliance specification and notice of hearing was
thereafter issued to Pessoa in order to resolve Pessoa’s
outstanding backpay liability. Membrino’s gross backpay period
ran from October 24, 2008, the first day of his unemployment, to
February 8, 2013, when he was offered reinstatement, and his
gross backpay was calculated to be $199,285.90. The time period
from November 3 to November 28, 2008, when Membrino was
admittedly not looking for employment following his
hospitalization, was excluded from the gross backpay period.
Membrino’s wages from his interim employment were deducted from
the gross backpay calculation. The General Counsel alleged that
Pessoa owed Membrino $107,929 in net backpay, plus interest.
Pessoa claimed that its backpay liability was only $912, all of
which was incurred prior to Membrino’s hospitalization.
9
At the conclusion of the hearing, the Administrative Law
Judge (“ALJ”) rejected Pessoa’s challenges to the gross backpay
calculation, including its claim that backpay liability should
have been tolled from November 3, 2008, to April 23, 2010, due
to Membrino’s medical condition. However, the ALJ did reduce
the gross backpay to account for several periods when Membrino’s
CDL had been suspended for his failure to pay fines and support
obligations. The ALJ found that Membrino had made reasonable
efforts to obtain interim employment, and that Membrino’s
departures from Portable Storage, Aggregate Industries, and
Cylos, Inc., were not the result of willful misconduct. With
the adjustments, the final award was computed to be $95,046.07,
plus interest. The Board affirmed.
III.
A.
Pessoa’s primary claim is that the FMCSA regulations
governing CMV drivers take precedence over the NLRA, and that
Membrino’s diagnosis of angina pectoris on November 3, 2008,
immediately disqualified him from driving a CMV. Pessoa argues
that Membrino remained unavailable for work as a CMV driver, and
ineligible for backpay under the NLRA, until Membrino passed the
DOT physical and obtained his new DOT card on April 23, 2010,
for Portable Storage.
10
The ALJ rejected Pessoa’s claim, noting that neither Pessoa
“nor potential interim employers (such as Portable Storage and
Aggregate) required Membrino to present a current DOT card as a
precondition to considering him for vacant CDL positions.
Instead, potential employers allowed Membrino to apply for
vacant CDL positions, and then sent him for a DOT physical only
as a final step to fulfill before starting work.” J.A. 22.
Moreover, “Membrino complied with that procedure when asked to
do so, and passed his DOT physicals when they were required.”
J.A. 22. “Since there [was] no evidence of a period of time
[after November 28, 2008] where Membrino would not have been
able to pass a DOT physical if requested,” the ALJ rejected
Pessoa’s “request to toll the backpay period on that basis.”
J.A. 22. The Board affirmed.
In its petition for review, Pessoa contends that Membrino
was ineligible to work as a CMV driver as a matter of law and,
therefore, that “the Board’s chosen remedy trenches upon” the
federal laws and regulations governing CMV operators, which are
“outside the Board’s competence to administer.” Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). We disagree.
In Hoffman, the Supreme Court held that an undocumented
alien was disqualified from a backpay award under the NLRA, even
though he had been fired for engaging in union activities. The
employee had at all times been illegally present and
11
unauthorized to work in the United States. He was subject to
criminal punishment for obtaining employment through the use of
false documents. And he had, therefore, “qualifie[d] for the
Board’s award . . . only by remaining inside the United States
illegally.” Id. at 150. Under such circumstances, the Court
held that policy arguments counseled in favor of according the
federal immigration laws precedence over the NLRA. See id. at
150 (noting that “awarding backpay in a case like this not only
trivializes the immigration laws, it also condones and
encourages future violations”).
Here, unlike in Hoffman, the Board’s backpay award does not
“trench[] upon” the FMCSA regulations or the safety policies
that they serve. id. at 147. Membrino held a valid CMV license
for many years prior to and during his employment with Pessoa.
He was qualified for employment under the federal laws when he
was unlawfully terminated and when he began his search for
interim employment. Moreover, even if we were to conclude that
the FMCSA regulations required Membrino to be re-examined and
re-certified after his hospitalization, the regulations only
required him to do so prior to driving a CMV. The regulations
did not require Membrino to voluntarily undergo a DOT physical
at his own expense or hold a current DOT card in order to search
for suitable interim employment as a CMV driver to mitigate his
12
losses. Accordingly, the Board’s remedial order does not
conflict with the requirements of the FMCSA regulations.
The Board’s remedial order also does not contravene the
safety policies served by the FMCSA regulations. The Board
required Pessoa to reinstate Membrino as a CMV driver and to
make him whole through the payment of backpay. But the Board’s
order did not require Pessoa to allow Membrino to drive a CMV
despite any regulatory disqualification, nor would it have
required Pessoa to reinstate or recompense Membrino regardless
of his medical or legal qualification to return to work as a CMV
driver on or after November 29, 2008.
Under the NLRA, Pessoa bore the burden of establishing an
affirmative defense based upon Membrino’s unavailability to
work, and any doubts must be resolved against it. See Mining
Specialists, 326 F.3d at 605. Pessoa failed to demonstrate that
Membrino had a current clinical diagnosis of acute angina
pectoris on November 29, 2008, that would have rendered him
physically disqualified from operating a CMV, and failed to
demonstrate that he would not have passed a DOT physical as of
that date. Indeed, all indications are to the contrary. By all
accounts, the medical treatment Membrino received for his acute
angina pectoris was a success. He was released from the
hospital on November 4, and told that he should avoid driving
for two days and heavy lifting for two weeks. He recuperated
13
for several weeks, and resumed his efforts to obtain interim
work as a CMV driver on November 29. His follow-up health
appointments were uneventful and he passed every DOT physical
examination that he was required to take by his interim
employers thereafter.
Accordingly, we hold that the Board did not err as a matter
of law in rejecting Pessoa’s claim that the FMCSA regulations
mandated that it toll the backpay period from November 28, 2008,
to April 23, 2010. Nor did the Board abuse its discretion in
finding that Pessoa failed to establish that Membrino suffered
from a medical condition that would have disqualified him from
obtaining a DOT card or from safely operating a CMV during that
time period.
B.
Pessoa next contends that the Board should have tolled
Membrino’s backpay period because he made several
misrepresentations in the employment applications that he
submitted to his interim employers. Membrino does not deny that
he made such misrepresentations. For example, he indicated that
he had been self-employed as “Membrino Trucking” or “Membrino
Delivery Services,” to cover the gaps in his employment history.
He failed to disclose several periods of time that his CDL
license had been suspended or revoked. And he at times omitted
or concealed the fact that he had been convicted of two felonies
14
more than 15 years before. Membrino “explained that he made
these false statements and omissions because he desperately
needed work.” J.A. 17 n.24; see also J.A. 13 n.11 (“Membrino
was clear and forthright in explaining that he was in dire need
of employment because he lacked alternat[ive] sources of
income.”). The Board credited (but did not condone) Membrino’s
explanation for why he made the misrepresentations to his
interim employers, and declined to offset Pessoa’s backpay
liability for its illegal termination of Membrino on this basis.
At the outset, we note that Pessoa’s argument on this basis
is not altogether clear. Pessoa appears to contend that
Membrino’s misrepresentations amounted to a willful violation of
the FMCSA regulations, which require truthful answers on such
applications. See, e.g., 49 C.F.R. §§ 383.35, 391.21. However,
Pessoa has only explicitly sought to reduce the backpay award
for the period from November 28, 2008, to April 23, 2010 (to
$24,054), based upon Membrino’s medical diagnosis of angina
pectoris and his DOT-card status. Any misrepresentations made
by Membrino to interim employers in or after April 2010, could
not have resulted in a failure on his part to mitigate losses
during the challenged time period.
To the extent Pessoa argues that the Board was required to
find that similar misrepresentations might have prevented
Membrino from securing interim employment prior to April 2010,
15
or that Membrino’s misrepresentations caused him to lose
employment after April 2010, Pessoa has failed to demonstrate
that the Board erred as a matter of law or abused its discretion
in rejecting them.
Membrino’s misrepresentations, even if technically
violative of the FMSCA regulations, did not automatically
disqualify him from being hired nor require that he be fired by
the employer. See 49 C.F.R. § 383.35, 391.21. Consequently,
the Board’s backpay order does not conflict with the FMCSA
regulations. Nor is there any evidence that Membrino’s
misrepresentations affected the adequacy of his job search or
the retention of his interim employment. As noted by the Board,
Pessoa “failed to show that Membrino’s job search was
unreasonably narrow or limited in any respect” and “did not
present any evidence that th[e] false statements prevented
Membrino from obtaining or retaining employment during the
backpay period.” J.A. 24.
We hold that the Board did not exceed its authority or
abuse its discretion by failing to toll the backpay period based
upon misrepresentations that Membrino made in the employment
applications to his interim employers. Even if Membrino’s
representations were willful in character, there is no evidence
that they actually resulted in an earnings loss. If anything,
the misrepresentations inured to the benefit of Pessoa in that
16
they mitigated the earnings losses occasioned by Pessoa’s
illegal termination of Membrino under the NLRA.
C.
Pessoa’s final claim is that the ALJ erred in failing to
allow it to impeach Membrino’s credibility based upon his two
prior felony convictions. We disagree.
Pessoa argued before the ALJ that Membrino conducted an
inadequate search for interim employment and engaged in willful
misconduct that resulted in his being fired by Portable Storage,
Aggregate Industries, and Cylos. The ALJ found that Membrino’s
job search was adequate and credited Membrino’s testimony
regarding the reasons for his terminations. The Board affirmed.
Pessoa contends that it should have been allowed to challenge
Membrino’s credibility as to the reasonableness of his efforts
to obtain and retain such interim employment with Membrino’s
criminal history.
When more than 10 years have passed since a witness’s
conviction, the conviction is not admissible to attack the
witness’s character for truthfulness unless: “(1) its probative
value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect; and (2) the
proponent gives an adverse party reasonable written notice of
the intent to use it so that the party has a fair opportunity to
contest its use.” Fed. R. Evid. 609(b).
17
During the hearing before the ALJ, Pessoa discovered that
Membrino had prior convictions for distribution of a controlled
substance in 1997 and for possession of a handgun in 1995, well
past the 10-year threshold set forth in Federal Rule of Evidence
609(b). The ALJ ruled that Membrino’s criminal record was “not
admissible under Rule 609 because of the passage of time, the
fact that any probative value of the evidence does not
substantially outweigh its prejudicial nature, and the fact that
[Pessoa] did not provide reasonable written notice of its intent
to use Rule 609 evidence such that the General Counsel would
have a fair opportunity to oppose the request.” J.A. 12.
Although Pessoa claimed that it should be excused from the
prior-notice requirement because it had not learned of
Membrino’s felony convictions prior to the hearing, the ALJ
noted that Pessoa had sufficient information in its employee
files to discover the convictions well in advance of the
hearing. And “to the extent that [Pessoa sought] to use the
proffered Rule 609 evidence to establish that Membrino made
false statements on job applications to interim employers,” the
ALJ ruled that the evidence was “cumulative and irrelevant in
light of the admissions that Membrino made elsewhere in the
record.” J.A. 12. We find no abuse of discretion in the ALJ’s
decision to exclude evidence of Membrino’s prior convictions.
18
To the extent Pessoa otherwise challenges the ALJ’s
credibility determinations regarding its affirmative defenses,
we likewise find no abuse of discretion. It is well settled
that credibility determinations will be overturned only in
“extraordinary circumstances.” WXGI, Inc. v. NLRB, 243 F.3d
833, 842 (4th Cir. 2001) (internal quotation marks omitted).
Such “circumstances include those instances when a credibility
determination is unreasonable, contradicts other findings of
fact, or is based on an inadequate reason or no reason at all.”
Id. (internal quotation marks omitted). Here, there is no
extraordinary basis for the court to reverse the Board’s
credibility determinations.
D.
In its Reply Brief, Pessoa argues that the Board’s gross
backpay calculation was inflated because it was based in part on
overtime hours that Membrino had worked at Pessoa prior to his
termination. 2 Because Pessoa did not challenge the gross backpay
calculation on this ground before the Board, we lack
jurisdiction to consider it. See 29 U.S.C. § 160(e) (“No
objection that has not been urged before the Board, its member,
2Pessoa also raised the issue in a Rule 28(j) letter after
it filed its opening brief, to which the Board filed a response.
Pending before us is the Board’s motion to strike Pessoa’s Reply
to the Board’s Response to Pessoa’s Rule 28(j) letter, which we
now grant. See Fed. R. App. P. 28(j).
19
agent, or agency, shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.”). Even if Pessoa had
raised the issue before the Board, we would decline to address
it here. See U.S. S.E.C. v. Pirate Inv., LLC, 580 F.3d 233, 255
n.23 (4th Cir. 2009) (per curiam) (“Ordinarily we do not
consider arguments raised for the first time in a reply
brief.”).
IV.
For the foregoing reasons, we grant the Board’s application
for enforcement and deny Pessoa’s petition for review.
APPLICATION FOR ENFORCEMENT GRANTED;
PETITION FOR REVIEW DENIED.
20