Wilma was an employee of the Electric Storage Battery Company. ...

[jlmhmf]

Wilma was an employee of the Electric Storage Battery Company. She was fired. She claimed that she was fired because she was a member of a labor union. The employer asserted that she was fired because she was a poor worker. Wilma filed an unfair labor practice complaint with the National Labor Relations Board. Its examiner held a hearing at which evidence was presented showing that Wilma was a poor worker. Other evidence presented showed that the employer was opposed to labor unions. The Board decided to believe Wilma's witnesses and concluded that she had been fired because she belonged to the union. Can the employer appeal this decision?

Question 2

Arthur sustained an injury to his back. Arthur claimed the injury was suffered at work and filed a claim for workers' compensation benefits. The employer opposed this claim, saying the injury, if real, was the result of a congenital condition. In accordance with the statute, a hearing was held before the Workers' Compensation Board, which ruled against Arthur. Arthur became disgusted with the hearing officer and the proceedings because Arthur felt that the hearing officer did not like him. Arthur has consulted an attorney seeking to sue for workers' compensation benefits. An appeal is available within the agency, but Arthur wants to go directly to court because he feels that the agency appeal would be useless. Discuss the merits of this strategy.

[jsm54321]

Answer to Question 1

Yes. The employer has the right to appeal the decision. This right is conferred by statute. On the facts as stated, however, the employer will lose the appeal because the decision turns upon the decision of which witnesses to believe. If the witnesses on behalf of the employee are believed, there was an unfair labor practice. When the administrative agency selects one set of witnesses to believe, a court hearing an appeal will not reverse the conclusion of the agency. The court will only examine the case to see if there was a substantial basis for the agency's findings of fact. There was evidence on both sides which, if believed, would be sufficient to justify a conclusion in favor of each side. The court will not go further to see if it would have agreed with what the agency believed. That is, the court will not substitute its own opinion when a case turns upon the credibility of witnesses who testified before the agency.

Answer to Question 2

Arthur cannot bring a lawsuit to overturn the findings of the Worker's Compensation Board, since Arthur has failed to exhaust his available administrative remedies. The lawsuit would be unsuccessful and would not be heard by the courts.

[jlmhmf]

TYSM

[softEldritch]

Gracias!