NLRB v. Pessoa Construction Company
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to strike [999622996-2]; granting Motion for leave to file [999622996-3]; granting Motion for enforcement of agency order (FRAP 15) [999533134-2] in 15-1182 Originating case number: 05-CA-034547,05-CA-034761,05-CA-035083. Copies to all parties and the district court/agency. [999722153]. [15-1182, 15-1251]
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UNPUBLISHED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
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
WILKINSON
and
December 21, 2015
DUNCAN,
Circuit
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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granted by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pessoa
former
Construction
employee,
Company
William
(“Pessoa”)
Membrino
discharged
(“Membrino”),
its
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
interest.
Pessoa
to
reinstate
Membrino
We enforced the Board’s order.
with
backpay
plus
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,
liability should be $24,054.
of its supplemental order.
asserting
that
its
backpay
The Board applies for enforcement
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).
possible,
The goal is “to restore the situation ‘as nearly as
to
that
which
would
3
have
obtained
but
for
the
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[employer’s]
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illegal
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discrimination.’”
Id.
at
798
(quoting
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941)).
Because
“backpay
administration’
is
Congress
within
the
entrusted
to
‘empiric
the
process
expertise
of
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
quotation marks omitted).
stand
if
‘supported
statute.”
Id.
at
788
(internal
“The [Board’s] findings of fact must
by
substantial
considered as a whole.’”
evidence
on
the
record
Id. (quoting 29 U.S.C. § 160(f)).
“Only in very clear circumstances should courts override the
Board’s findings in th[is] area.”
Ordinarily,
an
unlawfully
Id. at 799.
discharged
employee
is
awarded
backpay from the date of the unlawful discharge to the date the
employer offers valid, unconditional reinstatement.
Waco
Insulation,
Inc.,
567
F.2d
596,
603
(4th
See NLRB v.
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.
4
The employee “need not
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actually obtain work,” but he “must make . . . a reasonable
effort to obtain interim employment.”
marks omitted).
such
as
cause,
when
A claimant’s willful loss of interim earnings,
he
tolls
Id. (internal quotation
the
voluntarily
backpay
resigns
period.
employment
See
NLRB
without
good
Pepsi
Cola
v.
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
practices.”
of
backpay
owed
to
the
victims
of
its
unlawful
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
5
began
working
at
Pessoa,
a
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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
unionized
Pessoa’s
Union
employees,
of
North
Pessoa
America
fired
successfully
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
391.11(b)(4),
391.41,
medically
certified
§ 391.45(b)(1).
operate
391.43,
every
a
&
24
CMV.
See
391.45.
The
months.
49
C.F.R.
driver
See
must
49
§§
be
C.F.R.
However, if the driver’s “ability to perform
[his or her] normal duties has been impaired by a physical or
mental
injury
required.
drive
if
or
disease,”
medical
49 C.F.R. § 391.45(c).
he
has
a
“current
certification
is
again
A driver is not qualified to
clinical
diagnosis
of
myocardial
infarction, angina pectoris, coronary insufficiency, thrombosis,
or any other cardiovascular disease of a variety known to be
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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
driver.
began
On
to
search
November
3,
for
2008,
interim
however,
chest pain and numbness in his arms.
unstable
angina
hypertension.
pectoris,
He
acute
underwent
a
employment
a
CMV
experienced
He was diagnosed with
ischemic
coronary
angioplasty to treat the condition.
Membrino
as
heart
disease,
angiography,
and
and
an
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,
interim employment.
2008,
Membrino
resumed
his
search
for
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.
7
On April
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2010,
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Membrino
passed
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the
physical
and
received
his
DOT
However, Membrino received only a temporary, 3-month card
due to his diagnosis of hypertension.
for Portable Storage on April 27.
Membrino began working
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
position with Aggregate Industries.
successfully
applied
for
a
Aggregate likewise required
Membrino to complete a DOT physical and obtain a new DOT card.
Membrino
again
passed
the
physical,
and
was
again
temporary 3-month DOT card due to his hypertension.
given
a
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.
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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”).
on August 1, 2011.
He began working at WSSC
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
thereafter
issued
specification
to
Pessoa
and
in
outstanding backpay liability.
notice
order
to
of
hearing
resolve
was
Pessoa’s
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.
from
November
admittedly
3
not
hospitalization,
to
November
looking
was
28,
for
excluded
from
2008,
when
employment
the
The time period
gross
Membrino
following
backpay
was
his
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.
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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.
efforts
The ALJ found that Membrino had made reasonable
to
departures
obtain
from
interim
Portable
employment,
Storage,
and
that
Aggregate
Membrino’s
Industries,
Cylos, Inc., were not the result of willful misconduct.
and
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.
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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
Instead,
to
considering
potential
him
employers
for
allowed
vacant
CDL
Membrino
to
positions.
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
and
had
at
all
times
been
11
illegally
present
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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
interim employment.
and
when
he
began
his
search
for
Moreover, even if we were to conclude that
the FMCSA regulations required Membrino to be re-examined and
re-certified
after
his
hospitalization,
the
required him to do so prior to driving a CMV.
regulations
only
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
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losses.
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Accordingly,
the
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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
work, and any doubts must be resolved against it.
Specialists, 326 F.3d at 605.
Membrino
had
pectoris
on
physically
a
current
November
disqualified
2008,
from
See Mining
Pessoa failed to demonstrate that
clinical
29,
to
diagnosis
that
would
operating
a
of
acute
have
CMV,
angina
rendered
and
failed
him
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.
13
He recuperated
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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
Membrino’s
contends
backpay
misrepresentations
in
that
period
the
the
Board
because
employment
submitted to his interim employers.
he made such misrepresentations.
should
he
have
made
applications
tolled
several
that
he
Membrino does not deny that
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
license had been suspended or revoked.
of
time
that
his
CDL
And he at times omitted
or concealed the fact that he had been convicted of two felonies
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more than 15 years before.
these
false
statements
needed work.”
and
Pg: 15 of 20
Membrino “explained that he made
omissions
because
he
desperately
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
income.”).
he
lacked
alternat[ive]
sources
of
The Board credited (but did not condone) Membrino’s
explanation
interim
because
for
why
employers,
he
and
made
the
declined
misrepresentations
to
offset
to
Pessoa’s
his
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
pectoris and his DOT-card status.
medical
diagnosis
of
angina
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,
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or
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that
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Membrino’s
Pg: 16 of 20
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
violative
of
misrepresentations,
the
FMSCA
even
regulations,
if
did
technically
not
automatically
disqualify him from being hired nor require that he be fired by
the employer.
the
Board’s
See 49 C.F.R. § 383.35, 391.21.
backpay
regulations.
Nor
order
is
does
there
not
any
conflict
Consequently,
with
evidence
the
that
FMCSA
Membrino’s
misrepresentations affected the adequacy of his job search or
the retention of his interim employment.
Pessoa
“failed
to
show
unreasonably
narrow
present
evidence
Membrino
any
from
backpay period.”
or
that
limited
that
obtaining
or
As noted by the Board,
Membrino’s
in
th[e]
any
job
respect”
false
retaining
search
and
statements
employment
“did
was
not
prevented
during
the
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
applications
to
his
that
interim
Membrino
made
employers.
in
the
employment
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
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they
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mitigated
the
earnings
Pg: 17 of 20
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.
job
search
was
adequate
The ALJ found that Membrino’s
and
credited
Membrino’s
regarding the reasons for his terminations.
testimony
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
conviction,
than
the
10
years
conviction
have
is
not
passed
since
admissible
to
a
witness’s
attack
the
witness’s character for truthfulness unless: “(1) its probative
value,
supported
substantially
by
outweighs
specific
its
facts
prejudicial
and
effect;
circumstances,
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
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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
Membrino’s
requirement
felony
because
convictions
prior
it
to
had
not
learned
the
hearing,
the
of
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
record.”
the
admissions
J.A. 12.
that
Membrino
made
elsewhere
in
the
We find no abuse of discretion in the ALJ’s
decision to exclude evidence of Membrino’s prior convictions.
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the
extent
Pessoa
Pg: 19 of 20
otherwise
challenges
the
ALJ’s
credibility determinations regarding its affirmative defenses,
we likewise find no abuse of discretion.
that
credibility
determinations
will
“extraordinary circumstances.”
It is well settled
be
overturned
only
in
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
extraordinary
quotation
basis
marks
for
the
omitted).
court
to
Here,
reverse
there
the
is
no
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
jurisdiction
to
this
ground
consider
before
the
See
U.S.C.
it.
29
Board,
§
we
160(e)
lack
(“No
objection that has not been urged before the Board, its member,
2
Pessoa 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).
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agent, or agency, shall be considered by the court, unless the
failure
or
neglect
to
urge
such
objection
because of extraordinary circumstances.”).
shall
be
excused
Even if Pessoa had
raised the issue before the Board, we would decline to address
it here.
n.23
(4th
consider
See U.S. S.E.C. v. Pirate Inv., LLC, 580 F.3d 233, 255
Cir.
2009)
arguments
(per
raised
curiam)
for
the
(“Ordinarily
first
time
we
in
do
a
not
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
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