National Labor Relations Board v. Pessoa Construction Co. , 632 F. App'x 760 ( 2015 )


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  •                               UNPUBLISHED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                  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    granted by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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