                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-1178



PARTS DEPOT, INCORPORATED,

                                                       Petitioner,

          versus


NATIONAL LABOR RELATIONS BOARD,

                                                       Respondent.

------------------------------

UNITE HERE,

                                           Respondent - Intervenor.



                             No. 07-1290



NATIONAL LABOR RELATIONS BOARD,

                                                       Petitioner,

          versus


PARTS DEPOT, INCORPORATED,

                                                       Respondent.

------------------------------

UNITE HERE,

                                                       Intervenor.
On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (12-CA-16449; 12-CA-
16741)


Argued:   December 4, 2007               Decided:   January 7, 2008


Before KING and SHEDD, Circuit Judges, and Henry F. FLOYD, United
States District Judge for the District of South Carolina, sitting
by designation.


Petition for review denied; cross-application       for   enforcement
granted by unpublished per curiam opinion.


ARGUED: Cathy M. Stutin, FISHER & PHILLIPS, L.L.P., Ft. Lauderdale,
Florida, for Parts Depot, Incorporated. Christopher Warren Young,
NATIONAL LABOR RELATIONS BOARD, Office of the General Counsel,
Washington, D.C., for the Board; Brent Garren, UNITE HERE, New
York, New York, for Unite Here. ON BRIEF: Charles S. Caulkins,
FISHER & PHILLIPS, L.L.P., Ft. Lauderdale, Florida, for Parts
Depot, Incorporated.   Ronald Meisburg, General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Assistant General Counsel, Robert
J. Englehart, Supervisory Attorney, Tracie C. Robinson, Student
Intern, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the
Board. David M. Prouty, UNITE HERE, New York, New York, for Unite
Here.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Parts Depot, Inc. petitions for review of a supplemental order

of the National Labor Relations Board (the “Board”) awarding

backpay to four former Parts Depot employees.            The Board cross-

applies, seeking enforcement of its order.           Because we find no

abuse   of   discretion   in   the   Board’s   backpay   order,   we   grant

enforcement and deny Parts Depot’s petition for review.



                                      I

     In 2000, the Board found that Parts Depot violated sections

8(a)(1), (3) and (5) of the National Labor Relations Act (“NLRA” or

the “Act”), 29 U.S.C. §§ 8(a)(1), (3) and (5), when it laid off 14

employees in 1994 without first bargaining with Unite Here, the

designated collective bargaining representative of Parts Depot’s

employees.    The Board ordered Parts Depot to provide backpay and

offer reinstatement, and that order was enforced by the Court of

Appeals for the District of Columbia Circuit.            See Parts Depot,

Inc., 332 NLRB 670 (2000) and 332 NLRB 733(2000), enforced, 24 Fed.

Appx. 1 (D.C. Cir. 2001).

     The Board then initiated the present backpay proceedings.             A

hearing was held before an Administrative Law Judge (“ALJ”), and

the Board ultimately awarded backpay to claimants Isabel Martinez,

Aundria McGregor, Angela Wilson, and Altonia Wright.               In this

petition, Parts Depot challenges all four awards on due process


                                      3
grounds and the awards to Martinez, McGregor, and Wilson for lack

of substantial evidence.1



                                        II

       Section 160(c) of the Act expressly grants the Board the

authority to award backpay as a means to restore the situation “as

nearly as possible, to that which would have obtained but for” an

employer’s illegal conduct.         Phelps Dodge Corp. v. NLRB, 313 U.S.

177, 194 (1941).       Because “backpay is within the ‘empiric process

of administration’ Congress has entrusted to the expertise of the

Board,” we review the Board’s backpay order for an abuse of the

discretion lodged in the Board.          Coronet Foods, Inc. v. NLRB, 158

F.3d 782, 798 (4th Cir. 1998) (quoting Phelps, 313 U.S. at 194).

In doing so, we must affirm the Board’s interpretations of the NLRA

if they are “rational and consistent with the Act,” and we must

affirm the Board’s factual findings if they are “supported by

substantial evidence on the record considered as a whole.”               Medeco

Sec.       Locks,   Inc.   v.   NLRB,   142   F.3d   733,   742   (4th    Cir.

1998)(internal citations and quotations omitted).                 Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consol. Diesel Co. v.

NLRB, 263 F.3d 345, 351 (4th Cir. 2001) (internal quotation and



       1
      Backpay due the other ten laid-off employees is not at issue
in this appeal.

                                        4
citation omitted).      If substantial evidence exists, we must uphold

the Board’s decision “even though we might have reached a different

result had we heard the evidence in the first instance.”                NLRB v.

Daniel Const. Co., 731 F.2d 191, 193 (4th Cir. 1984).



                                      III

                                      A.

       Parts Depot’s first argument on appeal is that it was denied

due process by several evidentiary and procedural rulings of the

ALJ.    Parts Depot identifies five rulings it contends deprived it

of    due   process:   (1)   the   ALJ’s    restriction    of   Parts   Depot’s

questioning of the Board’s Compliance Officer; (2) the ALJ’s

restriction of Parts Depot’s questioning of the claimants; (3) the

ALJ’s exclusion of certain aspects of the testimony of Parts

Depot’s expert witness; (4) the ALJ’s refusal to fully enforce

Parts Depot’s subpoenas; and (5) the ALJ’s refusal to allow Parts

Depot to amend its answer after the start of the hearing.

       ALJs are accorded significant discretion in controlling the

hearing and the development of the factual record in cases before

them.       See, e.g., Victor’s Café 52, Inc., 338 NLRB 753, 756-57

(2002).      The record before us supports the Board’s conclusion that

the ALJ’s evidentiary rulings properly restrained Parts Depot from

pursuing arguments without basis in Board law and served to limit

the    presentation    of    cumulative,     irrelevant,    and   superfluous


                                       5
testimony. Likewise, the ALJ was within his discretion to restrict

enforcement of Parts Depot’s subpoenas to matters relevant to the

issue of backpay and to decline to permit Parts Depot to amend its

answer after the start of the hearing to assert a new affirmative

defense in the absence of a showing that Parts Depot could not have

pled this defense earlier.          These rulings did not deprive Parts

Depot of due process and provide no basis for refusing to enforce

the Board’s order.

                                        B.

     Parts Depot next argues that the Board’s backpay awards to

Martinez, McGregor, and Wilson are not supported by substantial

evidence.

     Parts Depot makes two primary arguments concerning Martinez.

First,   it     argues   that   there   is   no   substantial   evidence   that

Martinez exercised reasonable diligence in seeking a job after

being    laid    off.     See   NLRB    v.   Pepsi   Cola   Bottling   Co.   of

Fayetteville, 258 F.3d 305, 311 (4th Cir. 2001) (“Where an employer

demonstrates that an employee did not exercise reasonable diligence

in his or her efforts to secure interim employment, then it has

established that the employee has not properly mitigated his or her

damages.”) (internal quotation and citation omitted). We find that

the work and interim earnings reports submitted by Martinez and her

testimony at the hearing constitute substantial evidence in support




                                        6
of    the    Board’s    conclusion    that    she   was   either    employed   or

diligently seeking employment throughout the backpay period.

       Second, Parts Depot argues that all of Martinez’s backpay

should have been disallowed because she concealed earnings from her

job at the Night and Day Laundry.            See Ad Art, Inc., 280 NLRB 985,

986 (1986) (“denial of backpay in all cases of willful concealment

most forcefully and effectively serves to promote the integrity of

the Board’s compliance processes”) (Chairman Dotson, concurring).

Instead of denying all backpay, the Board denied Martinez backpay

for   each    quarter    that   she   concealed     her   income,   an   approach

consistent with Board precedent.            See Am. Navigation Co., 268 NLRB

426, 428-29 (1983).       The Board has “broad discretion” in selecting

remedies, even when an award accrues to the benefit of a claimant

who has testified falsely in a Board proceeding.               See ABF Freight

Sys., Inc. v. NLRB, 510 U.S. 317, 325 (1994).              Because the Board’s

decision not to disallow all of Martinez’s backpay was within its

broad discretion, we decline to set it aside on appeal.

       Parts Depot next argues that McGregor’s backpay award cannot

be sustained because he unjustifiably quit several jobs during the

backpay period.         A claimant’s willful loss of earnings is an

affirmative defense to backpay liability. See Pepsi Cola, 258 F.3d

at 310.      However, a claimant is not required to accept or retain

interim employment that is substantially more onerous than the job

he was laid off from, is unsuitable, or threatens to become so.


                                        7
Nor is a claimant required to accept or retain interim employment

that entails greater exposure to environmental hazards or hardships

that were not present in his previous job.             See, e.g., Chem Fab

Corp., 275 NLRB 21, 24 (1985) enforced, 774 F.2d 1169 (8th Cir.

1985).    The Board concluded that because each of the jobs McGregor

quit involved conditions more onerous than his warehouse job with

Parts Depot, he was not required to accept them in the first place,

and therefore his resignation from those jobs was reasonable.

     We   hold   that   the   Board’s       determination   is   supported   by

substantial evidence.     The record demonstrates that McGregor quit

his job at Florida Smoked Fish because the job required him to work

with fish and “constantly be[] in water.”           J.A. 273.    He also left

a job with Jamo, Inc., a concrete company, because he was “inhaling

the chemicals that were used to make the cement” and because he was

“having problems getting [the chemicals] off [his] skin.”                J.A.

291, 293.    He left his job with Carnival Fruit Company because it

required him to work at “zero temperature” with the result that he

had frequent colds.     J.A. 299.   Having been unlawfully laid off by

Parts Depot, McGregor was not required to accept or remain in these

less desirable employment conditions.

     Finally, Parts Depot challenges the backpay award to Wilson,

claiming that Wilson unjustifiably quit a job at Unicco Service

Company because it required overnight hours and at GP Plastics

Corporation because it was too much work.          Parts Depot did not make


                                        8
these    arguments   before      the   Board,      and   therefore       we   lack

jurisdiction to consider them.         29 U.S.C. § 160(e).2



                                       IV

     Because   we    find   no   abuse      of   discretion   in   the    Board’s

supplemental order, we deny Parts Depot’s petition for review and

grant the Board’s cross-application for enforcement of its order.



                                          PETITION FOR REVIEW DENIED;
                            CROSS-APPLICATION FOR ENFORCEMENT GRANTED




     2
      Parts Depot also argues that the Board’s method for
calculating the claimants’ interim earnings was unreasonable. The
Board took annualized statements of each claimant’s earnings and
divided these by four to produce quarterly interim earnings, which
it then deducted from quarterly gross backpay to determine net
backpay.   Parts Depot argues that the Board was required to
calculate more accurately the quarterly earnings of the claimants
during the backpay period by determining interim earnings on a
quarterly basis. The Board determined that Parts Depot’s suggested
method would be impractical in cases like this one, where exact
employment dates over a ten-year period cannot be precisely
determined. J.A. 128 n.8. We find no abuse of discretion in the
Board’s conclusion or method of calculating backpay.

                                       9
