Hypotheticals for Review of Fact Determinations
 
I.   Statutory provisions - National Labor Relations Act (NLRA):

29 U.S.C. § 158(a)(3) states that it is an "unfair labor practice" for an employer by discrimination
in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor
organization.

29 U.S.C. § 160 empowers the National Labor Relations Board (NLRB) to hold hearings to
determine whether any person is engaged in unfair labor practices, and authorizes the NLRB to issue
orders requiring persons to cease and desist from engaging in unfair labor practices.  Assume, for
purposes of this hypothetical, that the statute requires the hearings to comply with 5 U.S.C. §§ 556
and 557.

29 U.S.C. § 160(f) allows persons aggrieved by a final order of the NLRB to obtain review of
the NLRB's order in the U.S. Courts of Appeals.  Assume, for purposes of this hypothetical, that
the NLRA does not explicitly state that factual determinations will be upheld if based on substantial
evidence.

II.  Facts:
 
A. The Dispute:

Newman, a parcel delivery truck driver at American Parcel Service (APS), is fired by APS in July 1997, allegedly for
incompetence and theft.

Newman files a complaint with the NLRB, alleging that he was actually discharged because
he was attempting to unionize the parcel delivery drivers at APS and that APS, therefore,
committed an "unfair labor practice."

B. The Hearing:
 
Newman's testimony:

At the hearing held by the NLRB, Newman testified that he organized two meetings of the
parcel delivery drivers at APS in September 1996 in an attempt to create a union to represent
the parcel delivery drivers. Newman also testified that, immediately following the two meetings,
his employer threatened to fire him if he continued to attempt to unionize the parcel delivery
drivers. Newman testified that he did not make any further attempts to unionize the workers
after his employer's second warning in September 1996.
 
 

Newman's employer's testimony:

Newman's employer testified at the hearing that Newman was often late for work, and was
insubordinate to his supervisors. Several supervisory employees corroborated the employer's
testimony. Newman's employer also testified that from May 1997 until Newman was fired,
several customers on Newman's route complained to APS that they did not receive parcels that
had allegedly been mailed to them through APS. Newman's employer testified that he believed
that Newman stole those packages. Newman's employer testified that he fired Newman for his
incompetence and for the theft of the packages.
 

C. The Board's decision

On the basis of the testimony received at the hearing, the NLRB determined that:

(1) APS terminated Newman for attempting to unionize the parcel delivery drivers at APS, and

(2) APS's actions constituted an unfair labor practice.

The Board ordered APS to reinstate Newman.
 

D. The challenge

APS seeks review of the NLRB's order in court, challenging the NLRB's finding that APS
terminated Newman for attempting to unionize the parcel delivery drivers.
 

E. Questions to think about:

What factual questions were resolved by the agency? What standard would a court use
to review the agency's fact-finding? Would the court uphold the agency's fact-finding?
 

III. Variation I
 
A. Testimony (in addition to the testimony described above):
 

At the hearing before the NLRB, Newman's employer was unable to offer any proof, other
than the employer's own testimony, that Newman stole any of the missing packages, or that
the packages were ever received by APS.  In addition, representatives of the companies that
allegedly sent the missing packages testified that their shipping records for May - July, 1997
were destroyed in a fire, and that they could not confirm that they sent the missing packages
through APS.

B. Board's decision:

On the basis of the testimony received at the hearing, the NLRB determined that

(1) Newman did not steal any packages,

(2) APS terminated Newman for attempting to unionize the parcel delivery drivers at APS, and

(3) APS engaged in an "unfair labor practice."

The Board ordered APS to reinstate Newman.
 

C. Questions to think about:

Is there any additional fact-finding for the court to review? Under what standard? What result?
 

IV. Variation II

A. Same as Variation I, except that the Board ordered APS to reinstate Newman and
awarded Newman back pay for the time that he was out of work.
 

B. Question to think about:

Does this change the nature of the court's review of the agency's fact-finding?
 

V. Variation III

A. Same as original hypothetical, except that Newman was unable to testify at the NLRB hearing.
Newman's friends, Cosmo and Elaine, appeared at the hearing on his behalf and testified that
Newman told them that he had organized two unionizing meetings at APS, and that his employer
threatened to fire him if he continued to attempt to unionize the parcel delivery drivers.

B. Board's decision: same as in the original hypothetical.