UNPUBLISHED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.
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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, CrossApplication 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Enforcement is granted by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
* 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.

4

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
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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.
8

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