Performance Friction Corp. v. National Labor Relations Board , 118 F. App'x 721 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1788
PERFORMANCE FRICTION CORPORATION,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
versus
UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS, AFL-CIO, CLC,
Intervenor.
No. 03-1918
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
PERFORMANCE FRICTION CORPORATION,
Respondent.
No. 03-2357
UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS, AFL-CIO, CLC,
Petitioner,
versus
PERFORMANCE FRICTION CORPORATION,
Respondent,
and
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Petitions for Review and Cross-Applications for Enforcement of
an Order of the National Labor Relations Board. (11-CA-16040; 11-
CA-18044)
Argued: September 29, 2004 Decided: December 22, 2004
Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
No. 03-1788, Petition for Review is denied; No. 03-1918, Cross-
Application for Enforcement is granted; No. 03-2357, Intervenor’s
Petition for Review is denied, and Intervenor’s Application for
Enforcement is granted by unpublished per curiam opinion.
ARGUED: William Lawrence Rikard, Jr., PARKER, POE, ADAMS &
BERNSTEIN, L.L.P., Charlotte, North Carolina, for Performance
Friction Corporation. Fred B. Jacob, NATIONAL LABOR RELATIONS
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BOARD, Appellate Court Branch, Office of the General Counsel,
Washington, D.C., for the Board. Marcia Weil Borowski, THOMPSON,
ROLLINS, SCHWARTZ & BOROWSKI, L.L.C., Decatur, Georgia, for the
Union. ON BRIEF: Stacy K. Wood, PARKER, POE, ADAMS & BERNSTEIN,
L.L.P., Charlotte, North Carolina, for Performance Friction
Corporation. Arthur F. Rosenfeld, General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, Howard E. Perlstein, Deputy Assistant General Counsel,
NATIONAL LABOR RELATIONS BOARD, Appellate Court Branch, Office of
the General Counsel, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Performance Friction Corporation (“the Company”) petitions for
review of a Decision and Order entered against it by the National
Labor Relations Board (“the Board”). On April 22, 2003, the Board
Ordered that the Company pay employees Jerry Kennedy (“Kennedy”)
and Manuel Mantecon (“Mantecon”) backpay with interest.* The Board
cross-applies for enforcement of its Order, and we have granted
United Automobile, Aerospace & Agricultural Implement Workers of
America (“the Union”) leave to intervene. Reviewing this case for
an abuse of discretion, we defer to the findings of the Board and
hold that the Board properly calculated and awarded backpay with
interest. As explained below, we deny the Petitions for Review and
grant the Cross-Applications for enforcement.
I.
On June 30, 1997, we affirmed the Board’s findings that the
Company had violated sections 8(a)(1) and (3) of the National Labor
Relations Act (“NLRA”). 29 U.S.C. §§ 158(a)(1), (3). We then
remanded the case to the Board for a recalculation of backpay.
Performance Friction II, 117 F.3d 763, 766 (1997). On November 24,
1998, the Board’s Regional Director received evidence and heard
argument before ordering the Company to provide backpay to both
* The Board awarded Mantecon backpay in the amount of $5,438
plus interest and awarded Kennedy backpay in the amount of $11,738
plus interest.
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Kennedy and Mantecon, along with four others. The Board calculated
the amount of backpay utilizing a “comparable or representative
employee” formula based on an average of eighteen employees who
worked throughout the entire backpay period in comparable positions
to Mantecon and Kennedy.
The Company now petitions for review of the decision
challenging the Board’s award of backpay on three fronts. First,
the Company argues that “Kennedy and Mantecon’s mendacious
behaviors were a fraud on and a flagrant abuse of Board processes
and therefore completely bar any backpay.” Next, the Company
argues that the Board improperly awarded backpay without requiring
Kennedy to prove that he mitigated his damages. Lastly, the
Company contends that the calculation method was improper.
II.
The disposition of this case turns solely on the application
of the standard of review, which is settled law in this Circuit.
The NLRA mandates that the Board’s factual findings “shall be
conclusive” so long as “supported by substantial evidence on the
record.” 29 U.S.C. § 160(e); Sam’s Club v. NLRB, 173 F.3d 233, 239
(4th Cir. 1999). Credibility determinations are given deference
absent exceptional circumstances and are reviewed solely for an
abuse of discretion. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–99
(1984). The Board’s interpretation of the NLRA is deferred to so
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long as “reasonably defensible,” WXGI, Inc. v. NLRB, 243 F.3d 833,
840 (4th Cir. 2001), and the Board’s application of the law to the
facts is reviewed solely to determine whether it is “supported by
substantial evidence based upon the record as a whole.” Sam’s
Club, 173 F.3d at 239. Further, the Board’s ordered remedy is
reviewed for an abuse of discretion and will only be disturbed in
the extraordinary circumstance where it is “arbitrary, capricious,
or manifestly contrary to the [NLRA].” Coronet Foods v. NLRB, 158
F.3d 782, 788 (4th Cir. 1998)(internal quotations omitted); ABF
Freight Sys. v. NLRB, 510 U.S. 317, 324 (1994); Aneco Inc. v. NLRB,
285 F.3d 326, 329 (4th Cir. 2002).
III.
In this Court’s view, the Board’s findings are supported by
substantial evidence on the record, and there are no exceptional
circumstances that warrant a finding that the Board abused its
discretion. Consequently, we affirm the findings and conclusions
of the Board. First, with respect to Mantecon’s and Kennedy’s
behavior, while “[f]alse testimony in a formal proceeding is
intolerable,” ABF Freight Sys., 510 U.S. at 323, the Board
explicitly found that “Mantecon did not make any intentional
misleading statements.” J.A. 526 n.11. Here, there was neither
exceptional circumstances, nor an abuse of discretion.
Consequently, we defer to the Board’s credibility determination.
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However, with respect to Kennedy, the Company argues that he
purposely lied about his incarceration and efforts to mitigate, and
should therefore be denied backpay. In American Navigation Co.,
the Board held that “discriminatees found to have willfully
concealed from the Board their interim employment will be denied
backpay for all quarters in which they engaged in the employment so
concealed.” 268 N.L.R.B. 426, 427 (1983). Therefore, the Board
appropriately withheld payment for the quarters corresponding to
the term of Kennedy’s incarceration.
Second, we conclude that any omission in the Board’s Order
with respect to Kennedy’s mitigation efforts are attributable to
the Company’s failure to meet its burden of proof. While
“employees who lose their jobs as a result of an unfair labor
practice must mitigate their damages by making a ‘reasonable effort
to obtain interim employment,’” Aneco Inc., 285 F.3d at 330 (4th
Cir. 2002)(quoting Coronet Foods, 158 F.3d at 800)), the burden
rests upon “the employer who committed an unfair labor practice to
establish facts that reduce the amount due for gross backpay.”
Minette Mills, Inc., 316 N.L.R.B. 1009, 1010 (1995). The Company
offered no evidence to justify a reduction in the amount of backpay
awarded to Kennedy. The Company failed to meet its burden and,
therefore, the Board did not abuse its discretion in awarding
backpay to Kennedy.
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Third, backpay was calculated utilizing a comparable or
representative employee formula based on an average of eighteen
employees who worked throughout the entire backpay period in
comparable positions to Mantecon and Kennedy. The Board’s
calculation method was objectively reasonable based on substantial
evidence and is entitled to deference. There has been no abuse of
discretion. See Coronet Foods, 158 F.3d at 800 (quoting Bagel
Bakers Council v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977)(finding
that the Board’s decision to “proceed by one method rather than
another hardly makes out a case of abuse of discretion”)).
IV.
For the foregoing reasons, Performance Friction Corporation’s
Petition for Review is denied; the Board’s Cross-Application for
Enforcement of its Decision and Order of April 22, 2003, is
granted; the Intervenor Union’s Petition for Review as to Mantecon
is denied, and the Intervenor Union’s Application for Enforcement
of the Board’s decision as to Kennedy is granted.
PETITION FOR REVIEW IS DENIED; CROSS-APPLICATION FOR
ENFORCEMENT IS GRANTED; INTERVENOR’S PETITION FOR REVIEW IS
DENIED; AND INTERVENOR’S APPLICATION FOR ENFORCEMENT IS GRANTED
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