Paul Hammontree v. National Labor Relations Board, Consolidated Freightways Corporation of Delaware, Intervenor

Cir.1985). (2d Dunn, F.2d v. they must ac- already Petitioner, told HAMMONTREE, Juries Paul they predispo- find unless quit a defendant v. They doubt. beyond a reasonable sition it is the guess that have to should LABOR RELATIONS NATIONAL prove it. See John- must government that BOARD, Respondent, 1028; son, United States 605 F.2d at (11th Cir.1982) 781, 787 F.2d Sonntag, 684 Freightways Corporation Consolidated to include would be (“[The] better Delaware, Intervenor. proof instruction specific burden ... Dunn, F.2d at entrapment.”); on No. 89-1137. cf. not refer to (“[District courts [should] Appeals, States Court United re- proof with burden the defendant’s Circuit. District of Columbia inducement, tends to since gard to issue.”). from the real jury distract Argued En Banc Dec. the Red- about concerns We note Whoie’s 12, 1991. Decided Feb. recognize that instruction, and we book undoubtedly voice defendants will other We thus in future cases. concerns

similar suggestion. to end with a

think it useful Circuit, also follows which

The Second entrapment, has en- approach to

bifurcated part relevant an instruction dorsed jury:

tells that a you find some evidence

If ... the criminal agent initiated

government indictment, you then charged in the

acts has satis- government decide must if prove beyond a rea- burden to

fied doubt that sonable defendant the induce- ready willing before crime. to commit the ment Reiss, Siffert, Sand, Loughlin & S. L. J. W. 8-7, Jury Instructions No. Federal

Model added), 118.07, (emphasis cit- at 8-30 Dunn, F.2d at approval

ed Devitt, M. E. C. Blackmar & 160. But cf.

Wolff, and Instruc- Jury Practice Federal 13.09, (3d Supp.1990) at 225 ed.

tions § unitary-approach

(proposing language Center, Pat- Federal

jurisdictions); Judicial No. Jury Instructions tern Criminal (1987) (same). preempt order

at 66 confusion, district possibility jury might to con- in this circuit want

judges appropriate. where the Redbook form generally 5. See

jury instruction HIT

Dunn, at 160. 119 F.2d

[*] ^{[*] [*]} sfs ^[*]

Affirmed. Management Re- (“NLRA”) and the Labor Alan B. Mor- Levy, with whom Alan Paul departure (“LMRA”), and a brief, petitioner. Ar- lations on the rison was D.C., find that Fox, II, Washington, past policy. also We from the Board’s L. thur' petitioner. permit the Board appearance for and the LMRA the NLRA entered ex- require an individual to Deputy Asst. Gen. Ferguson, John H. prior grievance remedies haust his Armstrong, Counsel, Aileen A. with whom charge practice filing of an unfair labor Counsel, and Deputy Associate General rea- order was both and that the Board’s Gen, N.L.R.B., Counsel, Sher, Asst. Linda its established and consistent with sonable brief, respondent. Joseph for on the were deny Accordingly, we Hammon- practices. Spielberg, Attys., Paul J. A. Oertel and petition review. tree’s for D.C., entered N.L.R.B., Washington, also respondent. appearances, Tenn., for in- Jaqua, Memphis, P. David I. BACKGROUND

tervenor. Background A. Factual WALD, MIKYA, Judge, Chief Before employed as a truck driv- Hammontree is GINSBURG, EDWARDS, BADER RUTH Freightways Consolidated er intervenor WILLIAMS, BUCKLEY, SILBERMAN, (“CF”); “peddle” runs —short he drives SENTELLE, GINSBURG, D.H. In than 200 miles.1 roundtrips of less HENDERSON, THOMAS, peddle runs out CF first offered when RANDOLPH, Judges. Circuit terminal, Memphis, Tennessee estab- filed Circuit Opinion for the Court policy of runs” lished a “choice Judges WALD, Judge in which Circuit driv- posted and available runs were which GINSBURG, BADER RUTH seniority. Al- order of ers chose runs in BUCKLEY, SILBERMAN, F. STEPHEN system senior drivers though under this GINSBURG, WILLIAMS, D.H. (and more lucra- thus longer could choose THOMAS, SENTELLE, CLARENCE departure tive) runs, knew the no driver RANDOLPH, HENDERSON, concur. result, run; or drivers time of his her telephone.” that “babysat Later often Concurring opinion Circuit filed union local year, CF and Hammontree’s Judge HARRY T. EDWARDS. post CF would agreement: reached an oral by Circuit Concurring opinion filed runs, peddle times for but would departure Judge SILBERMAN. seniority-based “choice eliminate the opinion by Chief quo, Dissenting filed quid pro part this runs.” As Judge MIKVA. any agreed griev- to withdraw union also by drivers might be filed claim- ances WALD, Judge: Circuit ing choice of runs. challenges a National Hammontree Paul .1985, February as the union’s collec- (“NLRB” Board Relations Labor (“CBA”) with bargaining agreement tive him to ex- “Board”) requires order that' Carrington, expiring, Jimmy CF was by a remedies established grievance haust a let- president, wrote newly-elected local’s bargaining agreement before collective “any agree- ter to CF which stated considers his unfair union and become ments CF] [between Hammontree contends complaint. The March 1985.” null and void requirement is both [on] an exhaustion such CBA, April effective new which became authority un- the Board’s inconsistent with of standards included maintenance Relations the National Labor der any dissent, absolutely no evidence record contains hostility Throughout Hammontree is char- 1. union,” and the union between Hammontree as a "dissident member acterized below, in- regard dispute. As discussed ("Diss.”) odds to this and as “at Dissent hostility lack of is indeed Part II. B. leadership,” These char- id. union’s his acterizations, fra true, analysis. only; significant atmospherics to our if provision2 required local stan- grievance montree’s exercise of (in 180) not already dards included in the Grievance by assigning CBA be Ham- runs, writing.” montree less new contract desirable CF had violat- “reduce[d] 8(a)(1) ed specify procedures failed assign- for the the NLRA.3 §§ peddle quid ment of runs and the pro quo Before the Judge Administrative Law agreement exchanging departure times for (“ALJ”), CF maintained that the seniority rights not reduced writing. adequately committee had considered Ham- montree’s discrimination complaint and griev- late Hammontree filed a that the Board should defer to the commit- (“Grievance 180”) claiming ance that his tee’s decision and thus need not consider seniority rights had by ped- been violated 8(a) anew the allegations. In the alterna- assignment practices. dle-run Pursuant to tive, contended, CF the Board should refer CBA, grievance the Hammontree’s the claim to grievance procedures the es- by heard a “Multi-State Grievance Commit- CBA,4 tablished under because the con- composed equal tee” of an number of union tract, 8(a), like bars discrimination § management representatives. This against union members.5 The AU ruled grievance, committee failed to resolve the 8(a) that the sufficiently claims raised a pursued which Hammontree then to the question different from that by heard level, next the Southern Area Grievance grievance committee so that deference to Committee. That committee sustained the committee’s decision did not bar consid- Hammontree’s claim and awarded him complaint. eration of the She also ruled damages. that because the individual of an Thereafter, stopped posting CF run de- (as employee opposed to the group inter- parture times. Hammontree then filed a union) stake, ests of the were at it would (“Grievance 101”) grievance second claim- improper require to Hammontree to ex- ing, alia, inter removal run grievance haust his Upon remedies. re- times violated the maintenance of stan- view, the Board affirmed the first and re- provision. The grievance dards first-level holdings. versed the second of these The committee denied the claim. Hammontree held policy Board that under its set forth in (“ULP”) practice then filed unfair labor Technologies Corp., United 268 N.L.R.B. charge, and the NLRB’s General Counsel 557 required Hammontree was to a complaint, alleging by issued remov- procedures exhaust estab- ing departure in response by times to Ham- Freight- lished CBA. Consolidated provides, part: questions interpretations arising 2. Article 6 of the CBA in relevant [sic] Agreement processed” this ... ... shall be ac- Employer agrees, subject following The cording procedures. to those provisions, employment that all conditions of operation relating in his individual to ... working conditions shall be maintained at not provides, 5. Article 21 of the CBA in relevant highest less than the standards in effect at the part: signing Agreement.... time of the of this Any employee acting member Union in any capacity official whatsoever shall not be 8(a) provides, 3. Section of the NLRA in relevant against discriminated for his acts as such offi- part: ..., any cer nor shall there be discrimination (a) It shall be an unfair labor against any employee because of Union mem- employer— bership or activities. with, restrain, (1) to interfere or coerce em- provides, part: Article 37 of the CBA in relevant rights guaran- ployees in the exercise of the Employer agree Union not to 7; teed in section against any discriminate individual with re- spect hiring, compensation, terms or condi- (3) by regard hire or discrimination employment tions of because of such individ- employment any tenure of condi- or term or race, color, sex, religion, ual’s or national employment encourage tion of discour- or limit, origin, they segregate nor will or classi- age membership any organiza- fy any employees way deprive any indi- tion .... employment opportunities vidual 158(a). 29 U.S.C. race, color, sex, religion, because of or nation- origin grievance proce- engage 4. Article 8 al or CBAoutlines other discriminato- provides ry prohibited by grievances dures and or acts law. ‘‘[a]ll alleged unilateral arising of an out claim 288 N.L.R.B. Corp., ways an em- working conditions change of review seeks Hammontree re- ruled would The Board ployer. order. CBA-provided arbitra- quire exhaustion it considered remedies before Policies NLRB’s B. The “Deferral” claim, if certain conditions of the Board’s one concerns This case appropriate, the met. Such deferment “pre- so-called its policies, two “deferral” ruled, if Board poli- Under policy. deferral” arbitral bargaining (i) long-standing is a there filed complaints cy, refers the Board parties; relationship between procedures to arbitration General Counsel employer enmity (ii) is no there CBA; doing governing established rights; employee’s exercise toward delays its considera- so, the Board defers willingness (iii) manifests employer separate, complaint. Under tion of the arbitrate; policy, not deferral” so-called “post-arbitral covers (iv) clause the CBA’s case,6 in this directly implicated issue; dispute at made to decisions limited shows deference meaning lie at (v) the contract pro- and arbitration through grievance dispute. center of the bargaining to collective pursuant cesses 842; Local Union at see also 192 N.L.R.B. provisions.7 1087, NLRB, F.2d 1090-91 494 No. 2188 v. Board’s suggests, the this As discussion deferment), (affirming Collyer (D.C.Cir.) in different operate policies “deferral” two 42 denied, 95 cert. Pre- purposes.8 different ways and serve (1974). 61 L.Ed.2d will, clarity’s for (what we deferral arbitral poli- deferment this The Board extended the ex- resembles sake, “deferment”) call 8(a)(3) complaints in 8(a)(1) and cy to § found in ad- requirements often haustion Co., 527 198 N.L.R.B. Radio National the abstention regimes and ministrative temporary (1972). After a contraction federal courts. by employed doctrines the Na- Board reaffirmed policy,9 the (what call we will deferral Post-arbitral decision policy in its 1984 Radio tional judicial ”) appellate resembles “deference N.L.R.B. Cory., 268 Technologies United deference. case, recog- the Board (1984). In 557 8(a) alleged violations nized that the Policy 1. Board’s The Deferment under the “clearly cognizable also were provision of ... grievance-arbitration Wire, broad 192 N.L.R.B. Collyer Insulated ruled that at [CBA],” id. and (1971), Board considered 837 all, deference, scope on the a limitation case, at but and deference CF raised both 6. In this awards. More The Board of arbitration the ALJ. the Board’s review issues before deferment decision, or- but post-arbitral deferral dif- importantly, AU’s deference pre- affirmed the and It is claim. of Hammontree's practice. dered deferment substantially justification fer that Ham- aspect order latter Board's challenges. montree now Transportation Corp., American General 9.See (1977) (overruling multiple National provides for 228 N.L.R.B. 808 in this case The 7. CBA us, Co.). does not see Diss. proceedings, but the dissent reminds grievance Radio As levels of provide binding 1513-1514, agency arbitration an final "it is axiomatic that for Nonetheless, court in this regulatory ‘must choosing neutral arbitrator. course alter others, grievance reso- "bipartite committee indicating analysis that its supply a reasoned up- been have procedures and decisions lution being deliber policies prior and standards ” American to arbitration.” equivalent held casually ignored.’ ately changed, Action 830 System, 722 F.2d Freight Inc. v. FCC, F.2d Television v. Children's authorities). (D.C.Cir.1983) (collecting 4n. omitted). 1987) (citation Although (D.C.Cir. Therefore, in this references "arbitration” policy evolved sub the Board’s deferment include opinion be read to should has, years, stantially past the Board over case. in this proceedings as those at issue such Radio, Transpor General American in National tation, Technologies, offered rea and United Thus, mis- policy” unfortunate is an 8. “deferral policies. opinions explaining its revised soned deferral deferral” is not nomer. “Post-arbitral given and must be and a union have intention is the law employer “[w]here Chevron, dispute resolu- at 842-43 n. voluntarily to create effect.” & elected ..., If contrary is to the 104 S.Ct. 2781-82 & n. 9. machinery ambiguous the Act for the Board to statute is “silent or with re- principles of basic issue,” spect specific at- and if “the fray prior to an honest jump into the permissible agency’s dis- answer is on a tempt by parties to resolve their based statute,” machinery.” at 559. construction of the we must de- through that Id. putes at 2782. Part A .fer. Id. at Policy 2. Board’s petitioner’s The /” con- reviews the “Chevron Deference the NLRA and the tentions LMRA involving the NLRB decision critical affirmatively Board deferment prohibit policy of deference Board’s petitioner’s this case. Part B considers the Co., Manufacturing Spielberg is awards arguments II” that the Board’s “Chevron Spielberg, N.L.R.B. impermissible decision exercise of was an give it would defer- ruled that the Board departure from its discretion estab- resolution of ence to an arbitrator’s policy. lished Board condi- practice claim if unfair certain subsequent met. As refined tions are Analysis A. Chevron I cases, to defer if: policy 10(a) the NLRA Section (i) presented to and issue was the ULP arbitrator; considered 10(a) provides of the NLRA Section fair (ii) proceedings the arbitration were “prevent power the Board’s ... regular; “shall not be practice[s]” unfair labor af (iii) parties agreed adjustment to be bound by any other means of fected award; and may prevention the arbitration or that has been or be law, by agreement, or established other clearly (iv) was arbitration award not the wise_” 160(a). Relying 29 U.S.C. on policies of purposes § repugnant plain meaning legis- reading his of the NLRA. the 10(a), history of Hammontree lative ar- § 1082; Raytheon 112 at see also N.L.R.B. prohibits Board gues that this section de- (1963). Although the Co., 883 140 N.L.R.B. disagree his claim. We ferment of subsequent undergone several policy has 10(a) any not reflect ex- find that does § revisions, F.2d Darr v. see 801 preclude intention to press congressional (D.C.Cir.1986) (discussing the imposition of exhaustion re- Board's the and turns” of deference “various twists as Hammontree’s. quirements in such cases remains the seminal policy), Spielberg policy. plain of the Board’s deference first contends statement Hammontree 10(a) prohibits Board defer- language of § Analysis II. claim; he reads that section as ment (not the one even Board case, providing that no whether The central issue this authority itself) diminish the Board’s may em- require an individual may the Board prevent ULPs first pri- to resolve and grievance procedures ployee to exhaust Although literally and read governed by instance.10 filing charge, is or to ULP isolation, 10(a) might permit such in- two-step analysis set forth § the now-familiar reading is a far more natural U.S.A., terpretation, Re- Inc. v. Natural Chevron 10(a) grant of Council, is an affirmative au- 104 that § sources Defense Board, express thority to the limita- 2778, 81 L.Ed.2d 694 Under authority. other tion on the Board’s Chevron, Con- we first determine “whether 10(a) words, plausible reading of a more directly spoken precise gress § the the shall issue”; has, that no one other than Board if “that is at it then question however, arguendo; adopt premise as analysis premised this petitioner’s on the we is 10. The II.B.l, below, supposi- of a claim assumption that deferment ULP discuss Part we infra faulty. or diminishes the Board’s may ”affect[s]” somehow authority. be itself analysis, purposes of Chevron / For the Act) expressly stated that the which authority ULP Board’s over dimmish discretion, defer its ex- inmay, “Board claims. any unfair such jurisdiction over ercise of supported by is interpretation This latter is where there case labor analysis congressional contemporary provided for prevention means of another sen the contested explained that which 1958, Original Sen- agreement_” S. make it clear that “is intended tence 10(b) Print, Sess. Cong., 1st 74th § ate estab although agencies other Leg.Hist. (1935); reprinted in code, law to handle agreement, or lished Citing hearing testimo- NLRA agencies can disputes, such other authority would deferment ny that Board Relations Labor the National never divest protection individu- in insufficient result other it would jurisdiction Board of which argues Hammontree employee rights, al Comm. on Senate Staff of wise have.” testimony, reacting Congress, Sess., Labor, Cong., 1st 74th Education language in order proposed eliminated the (73d Congress) Comparison of S. deferment. preclude Board (Comm. (74th at 3 Print Congress) S. reading of Con- plausible equally An 1935) (emphasis supplied) [hereinafter proposed language, deletion of gress’ NLRB, 1 reprinted in “Comparison"'] super- however, Congress deemed is that National Labor History Legislative language of sweeping light fluous 1319, 1323 [herein Relations contemporary con- 10(a) Again itself. As that “Leg.Hist. the NLRS”]. after interpre- supports this analysis gressional indicates, Congress concerned analysis history, characteriz- legislative tation of in as states other entities —such about “carrfying] out language as ing the deleted upon infringing dustrial boards— sentence of thought as the second same Congress was not con jurisdiction; explic- “carrying] out more 10(a)” and as deferring itself about Board cerned establish Board itly purpose Thus, con jurisdiction. of its own exercise body in labor relations.” paramount contention, 10(a) trary to Hammontree’s 3, 32, Leg. reprinted in 1 Comparison as an affirmative logically most read Hist, sum, 1323, 1358. In the NLRA establishing firmly power, grant of de- strong evidence there is of Labor.” “Supreme Court as the grounds of on proposed section leted Leg. reprinted in at Comparison say cannot that Certainly, we redundancy. Hist, 1357. NLRA the history of 10 reflects legislative the § foreclose intention to congressional specific maintains that Hammontree also deferment; best, only say we can Board history of indicates legislative the § pro- deleting in Congress’ intention that preclude express intention Congress’ ambiguous. posed section Hammon particular, In deferment. Board reasons, disagree we must For these Congress’ elimination on relies tree 10(a) that petitioner’s contention with the (in § and earlier drafts earlier bills provision jurisdiction. a letter to Board ed Board analysis "The motive for The continued: " Biddle, 'stepped President Roosevelt Chairman be understood writing section can best in this ” newspapers’ "denied and on the side of Mr. Bid- in by referring letter to to the President’s authority own to determine its Jennings the NLRB the v. The regard San to the case in dle Comm, J. jurisdiction" where such codes exist. in cases Staff of Senate Call-Bulletin." Francisco Gross, Labor, Sess., Making Rela- the National Labor Cong., 1 The 74th 1st Education on (1974). (73d Two members Congress) tions Board 119 and S. Comparison of S. 2926 (Comm.Print resigned protest later 1935) and the President (74th Congress) at 3 history changed This Id. at 120-21. reprinted his mind. "Comparison ”] [hereinafter that, enacting clearly the contested Rela- indicates Legislative History National Labor sentence, Congress primarily Jennings, concerned tions possibility other as that entities —such complained that charging party to the Board he juris- might preempt NLRB industrial resign because of his union been forced had boards— dissent, NLRA, Contrary Diss. at (Before diction. passage of the activities. then, 10(a), § the second serves pursuant Or- sentence operated to an Executive Board der.) significant purpose: express it establishes newspaper that a contended code preeminence industry preclud- relations. newspaper the Board’s by the established preclude interpretation though evidences a clear intent to even the OBA con- deferring provision paral- Board from ULP claim until the claimant has exhausted consideration of a tains an anti-discrimination upon lel to the section of the NLRA which his claim is based. remedies under the OBA. Initially, 208(d) § we observe that reads 203(d) naturally general policy 2. Section of the LMRA most as a state private dispute resolution, ment in favor of argues Hammontree also that not as kind of limitation on Board authority Board's deferment is limited authority.13 But even if we were to as 203(d) LMRA, provides § which that arguendo 203(d) § sume that does in some adjustment by agreed "[filinal a method way authority, limit the Board's deferment upon by parties is declared to be the argument Hammontree's fails on its own griev desirable method for settlement of terms, 8(a)(3) § "aris[e] for his claim does disputes arising application ance over the application interpreta [contract] over or interpretation existing of an collective- claim, tion." Hammontree's discrimination although bargaining agreement." 173(d) § 29 U.s.c. 8(a)(3), §~ raised under (emphasis supplied). Hammontree con is also actionable under the contract. Arti tends that his claim does not "arise over" prohibits cle 21 of the CBA "discrimination interpretation of the CBA and thus that against any employee because of Union deferment of his claim is not authorized membership or activities" and Article 37 of 203(d)'s conclude, § mandate.12 We how "discriminatory prohibit the CBA bars acts ever, that Hammontree's claim falls provisions ed law." These led the squarely scope 203(d) § within the alleged Board to conclude that the discrimi accordingly way that that section in no clearly prohibited by nation "is the con precludes the Board's deferment of Ham- tract." 288 N.L.R.B. at 1255. montree's claim. Hammontree, noted, Despite provi as we have contends these contractual sions, 10(a) generally deferment, § Hammontree contends that his bars simply interprets 203(d) authorizing "claim is one that arises under a defer- only "arising interpre- statutory provision happens par ment in cases over" to be goes allel to a claim that could be advanced tation of the CBA. He then on to contract," therefore, argue under the and that that his discrimination claim under upon the NLRA does not "arise over" contract "claim does not rest a construction of argument, arguethat, 12. The dissentoffersa similar con- 1509. He seemsto becausethe Con- tending Committee, finalizing LMRA, "carved out a limited ference con- preference" privatedispute rejected deleting resolutionfrom sidered but the idea of "unambiguous 10(a)." 10(a)(whichprovides the at 1509. The dissent thiscourt-rather than the Board-is the body commandof Diss. secondsentenceof the Board's apparently power by any believesthat "shallnot be affected proper means"), other that sentenceshould be inter- precise 203(d), § preted limiting to decidethe "limits"of as the Board'sdefermentauthor- althoughChevronwouldseemto dictateother- ity recognizedby 203(d). disagree. § We appear argue wise. Thedissentdoesnot that legislativehistory of the LMRAindicatesthat 203(d) unambiguous setting § tionssoas to it is believesto be the is in theselimita- the ConferenceCommitteeretainedthe second require interpretation.Indeed, no 10(a) any ambiguity § sentenceof to eliminate no meansclear what the dissentitself passage § created of 301 of the LMRA proper boundariesof the gave jurisdiction which federalcourts overcer- 203(d) "exception": agrees § the dissent that againstemployers tainclaims and unions. Con- appropri- "[t]hereare caseswhere"defermentis trary suggestion to the of the dissentthe Confer- ate, that the line shouldbe drawn at this case. Webelievethat suggests Diss. at but Committee, retaining ence the contestedsen- tence, sought that, to make "clear when two 203(d)represents quintessentialdelegation § a exist, remedies beforethe one beforethe Board and one Board, court, not this to formulatea courts, remedy beforethe Board policy deferment that accommodatesall of its to, shallbe in addition and not in lieu of other remedies." varyingstatutoryresponsibilities. H.R.Conf.Rep. 510, Cong., No. 80th 52, reprinted NLRB, Legislative dissent, colleague suggests 1st Sess. 1 13. In our that History Management 203(d) "generalizedprefer- § of the Labor RelationsAct doesnot reflecta private dispute (1948) (emphasissupplied). ence for resolution." Diss. at at 556 1494 203(d) substantially abrogat- only be correct if the would be This can CBA.” § parallel contractual and statu-

existence of ed.15 complainant tory provisions authorizes therefore, complaint, Hammontree’s action—either con- to choose one cause of clearly arises under Articles and 37 of nullify statutory the oth- tractual or —and such, any limitations on the the CBA. As argument is founded on a But such an er. authority arguably deferment cre- relationship misunderstanding of the be- 203(d) Hammon- ated do not affect § Act. The fact and the that tween the CBA claim, 203(d) preclude tree’s does not § Act not mean parallels the does the CBA of that claim. Board deferment only claim arises under that Hammontree’s the CBA—the claim either or 10(m) the NLRA Section Alexander v. Gard- arises under both. Cf 36, 52, Co., S.Ct. ner-Denver argues Hammontree also (1974) 1011, 1021, (stating 39 L.Ed.2d 10(m) claim, prohibits of his deferment § statutory rights that contractual 8(a)(3) requires that because that section § independent legally Title “have VII 8(b)(2) “giv claims discrimination § Contrary Hammontree’s im- origins”). priority” other claims. en over most plication, the and the Act are inde- CBA reading of Again, petitioner’s we find the governing the pendent sources of law cramped; reject we his the statute workplace.14 10(m)prohibits the Board contention § nullify cannot his contrac- requiring Hammontree from the exhaustion by choosing pursue simply his 8(a)(3) 8(b)(2) tual claim cases. remedies in and § § interpretation statutory claim. Such an 10(m) provides, in of the NLRA Section severely undermine the law would Con- part, relevant preference private gress’ “decided for set- [wjhenever charged any person disputes the inter- tlement of labor without practice engaged has in an unfair labor government” as reflected vention ..., 8(a)(3) 8(b)(2)16] such within [§ § 203(d). Paperworkers Interna- United all charge given priority over shall be Misco, Inc., 484 U.S. tional Union v. like except other cases cases of character 364, 370, 37, 108 given priority under ... and cases (1987). unilaterally party If a could release 10](i).... [§ pledge from a contractual to submit itself 160(m). Because the Board 29 U.S.C. complaints simply to arbitration because it statute, of certain does not defer consideration parallel had a claim under the then 17) (such policies complaints pro-private dispute resolution claims union, charge Collyer with the Board." and reiterated file 14. As the Board noted Technologies, Freightways Corp., such cases "‘an as- N.L.R.B. in United Consolidated wrong is remediable in both serted ” forum.’ United Technolo- contractual omitted). (citation gies, 268 N.L.R.B. 8(b)(2) provides 16. Section that: (b) It shall be an unfair labor 203(d)’s suggestion pref- that § 15. The dissent’s organization agents— or its only private dispute resolution is erence for employee when “the [individual] involved voluntarily claim to arbitra- [ ] submitted [ ] attempt employer to cause or to cause an tion," (emphasis supplied), is sim- Diss. against in viola- discriminate Congress' ilarly contend that "decid- infirm. To 8](a)(3) against or to tion of discriminate [§ collectively bargained preference” ar- ed respect employee to member- an with whom —and automatically defeated bitration clause—can be organization ship in such has been denied or aggrieved employee option is not at the of an terminated.... intent, only contrary congressional but also to 158(b)(2). 29 U.S.C. § fundamental tenet of labor inconsistent with the 8(a)(4) collective-bargaining agree- 17. Section of the NLRA defines an un- law that a sound Moreover, employees. as the fair labor to include "discrimination] ment binds all noted, against mean because he has filed Board the dissent’s view "would given testimony charges the contrac- Act.” 29 th[e] ... that a union could circumvent 158(a)(4). simple expedi- grievance procedure U.S.C. The Board has maintained § tual 8(a)(4) "clearly required having employee, is in order to § ent the individual instead of 8(b)(2) policy expedites the whole the of deferment 8(a)(3) discrimina- involving and § § tion, might prohibit read to be this section the resolution of the class of claims identi- 8(a)(3) 8(b)(2) and of Board deferment 10(m). § § fied in Thus Board’s defer- § Thus, argued that the it could be claims. policy fully consistent ment is only defer Hammontree’s can Board 10(m). priority of mandate § 8(a)(3) if it also defers all other claim § Given the realities of the Board’s work- 10(i)18). (except those noted claims § load, interpretation “imperative” of 10(m) does indeed direct Section 10(m)unrealistically Board’s restricts the § 8(b)(2) 8(a)(3) discrimination claims and § § The prerogative regulate its own work. meaning priority,” but the “given be shall 10,000 8(a)(3) processes NLRB more than § Although far from clear. phrase is of 8(b)(2) every year20; requir- and claims conceivably § in- be give priority” could “to ing process every and hear the Board to imperative to the Board terpreted as an 8(a)(3) decide all any that it must hear and it hears one of these claims before § 8(b)(2) it hears claims before and postpone (perhaps § indefi- other claim would claims, easily phrase just can other nitely) the of the thousands of resolution to the Board understood as a direction be 8(a)(3) involving and claims § process- expeditious the most that it ensure 8(b)(2).21 legislative history § 8(b)(2) 8(a)(3) claims consist- ing of and § § 10(m) not indicate that does § expertise and other ent with radically intended to intervene so into the responsibilities. expert processes Board’s and discretion. policy is animated deferment The Board’s Introducing as a floor amend- that section 10(m). interpretation by this latter § Act, ment to the Landrum-Griffin Senator Deferment, reasonably argues, the Board employees for expressed Mundt concern expeditious processing of facilitates joba deprived of and who been “ha[d] 8(b)(2) by generally 8(a)(3) claims § § discrimination; he paycheck” because complaints quickly more than resolving left that “these cases noted [often] The dissent proceedings could.19 period, for a some- hanging on the vine that Hammon- when it claims cries wolf amounting years.” Leg- times “be[ing] so rights are sacrificed ... tree’s Labor-Manage- History islative brought by others claims the discrimination Disclosure Act Reporting ment easily.” Diss. at processed more can be “Leg.Hist, at 1253 [hereinafter treatment of Hammon- The Board’s history This indicates the LMRDA ”]. policy part systematic of a tree’s claim in introduc- purpose Mundt’s that Senator its various statu- designed to accommodate expedi- 10(m) the most ing was to ensure § 10(a), pursuant tory obligations §§ 8(b)(2) tious resolution § § 10(m) 203(d), although individual claims, exper- the Board’s preempt not to may left unresolved arbitra- claims proceed- management of its own tise in the effectively delays deferment tion so that claims, ings. on of those ultimate resolution during pe- equally processes” substantial integrity caseload was safeguard of the Board’s 10(m) debated. pro- which was duty preserve § riod in "the and that enacted, 10(m) year the NLRB delegated after ... abuse not be cesses from ... claims, 11,000 Associates, Inc., including processed more than an arbitrator.” Filmation 8,000 (1977). claims. See more than discrimination N.L.R.B. 95-637, Cong., at 26 H.R.Rep. 1st Sess. No. 95th 10(Z) priority creates first-level 18. Section claims, involving including sec- those certain 160(f). ondary boycotts. See 29 U.S.C. 10(m) interpretation of is not 21.The dissent's entirely the "de- The dissent decries coherent. Elkouri, generally How yet F. Elkouri & E.A. lay” imposed by 19. See to call deferment and seems (4th 1985). Works ed. Arbitration 7-9 than consideration of more for the immediate 10,000 petitions result discrimination —a delay certainly greater cause even would almost 20. See National Labor Relations many petitions prevails. than now of these Report, Board’s Annual FY at 189. The 1988 10(m) interpretation employee in rights The Board’s cases which individual § also to be favored because it is consistent are stake is inconsistent with a series of statutory with the Board’s other obli- Supreme beginning Court decisions with gations, particular arising in those Co., Alexander v. Gardner-Denver 203(d). It is difficult to reconcile § U.S. 94 S.Ct. 39 L.Ed.2d 147 private 203(d)’s express preference § alleged We find the conflict illuso- interpretation dispute resolution with an ry- Board itself 10(m) requiring that the § Alexander, Supreme In held Court immediately. claims hear all discrimination statutory Title VII creates individual 10(m) contrast, interpreting require In § rights supplement, sup- rather than implement process a that the Board be- plant, rights contractual under a Ac- CBA. expeditious most ensure the res- lieves will cordingly, employ- the Court held that an claims overall is olution of discrimination procedures ee’s use of arbitration did not 203(d). wholly Estab- consistent § action, subsequent bar based on the same principles lished and familiar facts, brought Title federal court under interpretation latter construction favor this The Court reached a similar conclu- VII. 10(m), obligated for courts con- § sion in Barrentine v. Arkansas-Best harmoniously pos- whenever strue statutes Inc., Freight System, Statutory sible. Sutherland Singer, (1981) (consider- S.Ct. 67 L.Ed.2d 641 (4th 1984). Construction § 53.01 ed. For ing analogous brought claim under the reasons, 10(m) find that does these we § (“FLSA”)) Fair Labor Standards Act and in congressional intent” not manifest a “clear Branch, McDonald v. West require immediate Board consideration (1984) (con- Chevron, of all discrimination claims. sidering brought a first amendment claim 9,n. n. 9. U.S. at 843 2781-82 1983). under 42 In each U.S.C. of these reject petitioner’s ar- Accordingly, we cases, (in 10(m) Congress the Court ruled that precludes gument Board de- VII, FLSA, 1983) provided Title ferment of his discrimination claim. public individual-rights forum for claims sum, language legislative his- participation private and that arbitration 10(a), 203(d), 10(m) tory of do not §§ right must not diminish one’s to such a persuade directly us that “has forum. Hammontree reads these cases spoken precise question” of whether broadly, proposition for the that “individual require the Board to ex- statutory rights cannot sacrificed on the filing a haust remedies before Thus, altar of arbitration.” Hammontree charge ULP of discrimination. On that maintains that these cases limit the Board’s basis, reject petitioner’s we several to defer discretion claims which an indi- I arguments. Chevron personal seeks to vidual vindicate Analysis B. II under the NLRA. Chevron 1. Limitations on the Board’s Alexander, Defer- We Barren- disagree. Authority ment tine, McDonald, Supreme Court that, statutory rights held when individual argues

Hammontree under the sec stake, are at of a that, contractual Chevron prong of if ond even Con preclude subsequent claim does not statu- gress expressly did not limit the Board’s case, however, tory claim. In this authority in the NLRA we con- deferment and the LMRA, preclusive sider not the effect of arbitra- its action his case is based on an impermissible construction tion awards but rather the Board’s authori- require authority ty under those statutes. Hammon the exhaustion of arbitration analytically tree contends that Board deferment remedies.22 These issues are Thus, preclude subsequent the dissent’s reliance on Alexander is arbitrator ... does not [an] inapt. Although Supreme also Court has consideration the NLRB as an unfair labor charge,” (emphasis sup- noted that "consideration of claim Diss. at [a ULP]

I497 remedies; contrast, pre- independent under award give an arbitration distinct. To NLRA, destroy expressly legis has an individual’s clusive effect would of protection private- for the right public preference to a forum a for the use of lated deferment statutory rights; remedies, feasible, Board her the re whenever before nullify employee’s similarly Thus, does not public a sort to remedies. decision has Act.23 As the rights under permit did not suggesting Title VII that stated: Supreme requirement,27 the exhaustion “ It is not akin to abdication. [Djeferral is heavily relied on the fact that Court ‘Con restraint, exercise of merely prudent clearly [private dispute retained gress use of the Board’s postponement a private remedy against a em as resolution] parties’ dis- give own processes separate ployment discrimination from machinery a chance pute resolution the more independent and elaborate succeed. time-consuming procedures of Title ” 268 at Electri Technologies, N.L.R.B. VIL' Union International United cal, not Ham- Robbins does diminish v. 560.24 Radio & Machine Workers Deferment forum; mere- public 229, 239, right Inc., to a 97 S.Ct. Myers, montree’s 429 U.S. & ly delays 441, 448, (emphasis it.25 427 50 L.Ed.2d (citation omitted). But the supplied) same following Moreover, Alexander cases Congress’ intent under the not true of is require- that an exhaustion suggesting NLRA, Congress clearly NLRA. with VII26 inconsistent Title ment would be private dispute segregate did not seek to dispositive, for Title VII also not remedy “separate from and resolution a ways. differ several critical the NLRA In statutory remedies. independent of” First, VII, Congress has ex- Title under deed, 203(d)’sexpress preference pri for res- private recognized dispute that pressly Congress’ remedies reflects con- and vate statutory relief are distinct olution and rights) omitted), ing cannot waive FLSA (citation that a union at the risk of redun- plied) 693, NLRB, 460 U.S. "subsequent" Metropolitan Co. v. dancy, re-emphasize that such Edison we 1476-78, 1467, 707-10, 75 L.Ed.2d 387 at issue in this case. 103 S.Ct. is not consideration may, (1983) (holding a union under certain that question be if the would raised A different 23. circumstances, rights). members’ NLRA waive grounded policy were on Board’s deferment exist in the area differences Whether such theory, exhaustion rather than on Edwards, waiver now us. post-arbitral deference is not before generally grounds. See Deferral Duty Bargain: Waiver Arbitration Electrical, & Radio Union 26. See International Everlasting Way at Possible Out A Confusion Inc., Myers, 429 Robbins & Machine Workers However, (1985). 23 46 Ohio St.LJ. 229, 441, (1976); L.Ed.2d 427 97 50 U.S. S.Ct. Dorr, has not the Board “[s]ince noted in as we 1259, F.2d 1266 v. Local 543 see also Gibson theory, pre- adopted explicitly that it would Cir.1976) ("Exhaustion (9th of [arbitration n. 14 express 801 our view on the issue.” mature to precondition VII to a Title is] remedies not n. 8. F.2d 1409 Works, suit."); Steel 502 v. Wisconsin Waters Cir.1974) (7th (holding Technologies, 268 N.L.R.B. United 1316 24. See also F.2d “Nothing properly proceed under sec "plaintiffs in this decision diminishes ... n. 17: could employees exhausting any relief right to seek first contrac tion 1981 without practices." denied, alleged remedies"), unfair labor for cert. tual (1976); see Gil but his arbi- Only had exhausted Hammontree 25. if Corp., F.2d Lane mer v. Interstate/Johnson only charge, if and filed tration remedies Cir.) Age (4th (holding that Discrimination had then deferred the Board compul preclude Employment does not complaint, deciding we would award in — —, arbitration), granted, sory cert. applicability of Alexander need to determine L.Ed.2d 18 arising NLRA. Notwith- under the to claims protests dissent- standing passionate of our Supreme Myers, Court ruled & In Robbins colleague, this case ing not Diss. filing statutory period a Title VII make such a determina- not now and we need during pendency would be tolled claim tion. pe- filing proceedings. Given the of arbitration note, however, Supreme Court We do VII, consequence of this one under riod Title has indicated requirement would ruling exhaustion is that an Compare Bar- differ. the NLRA FLSA and (hold- many Title VII claims time-barred. rentine, render S.Ct. at 1444 U.S. at 1498 only where a balance to arbitration that, regard to NLRA deferral with

sidered view deferral.” Local Un- dispute policies resolution favors public of ... rights, private Thus, if interdepen- 2188, at 1090. but 494 F.2d independent, ion No. were not Thus, Title YII an although under financial bur- posed undue dent.28 deferment “an may impermissi- be requirement parties,” “pre- exhaustion or of upon one the den 203(d) authorizes such a ble, expressly law,” exposition the orderly of vented] NLRA redress of requirement the that if “anti-union animus [indicated] rights. gesture,” or a futile ... would be deferral subsequent render a would if arbitration concep- broader reflects This distinction untimely,30then deferment re- claim the remedial differences between tual impermissible. and the NLRA. See Local Union might VII be by Title gimes created individu- nonwaivable As evidenced F.2d at 1091. Title VII established No. 494 court; in federal rights, analysis Collyer redressable in its al by the multi-factor group and waivable29 doctrines, established NLRA Technologies and United complex in a rights, redressable individual limi- long recognized these has also Board In contrast scheme. administrative However, is no this case there tations. VII, charged courts, which, Title are under taken deferment that Board indication discrimination adjudicating individual right to prejudice Hammontree’s along will NLRA, Board, claims, under the his claim be denied public forum should a of administration charged with the overall proceedings. relations; accordingly, labor-management recognize that Board deferment We also in the first instance access to filed charges if are may impermissible be differently, and exhaus- may rationed be employee and the interests by an individual systems in these two requirements inimical charging party are so These differences need not be identical. to render arbitration of the union the nonex- those applying a flaw indicate basic dissenting Like jurisprudence empty exercise.31 our aspect Title VII haustion finally to con- NLRA, “possibili- lead us are sensitive to colleague, we does line of cases clude that Alexander the interests of the ty that some cases] [in policy. deferment preclude the Board’s not em- diverge from those of the union at 1516. Board abstention ployee.” Diss. Board, recognize that We, like indeed might eases in such “constitute[ ] deferred could justice some circumstances deference, Local Un- but abdication.” emphasized in justice denied. As we Thus, the F.2d at 1091. 494 ion No. policy, de- Collyer approving the Board’s “ a ‘reasonable only defers if it holds requires Board “balancing a rule which ferment is scope of the conditions and Agency, a discussion Railway Express 29. For 421 Johnson v. 28.In NLRA, Metropolitan see under 44 of waivers L.Ed.2d 95 U.S. S.Ct. 707-10, Edison, 103 S.Ct. at 1476-78. 460 U.S. at heavily in Robbins & relied on 295 filing of a Title Myers, the Court held charge of limitations did not toll the statute 236-40, VII Myers, 97 Robbins & 429 30. Cf. action; filing the court stated: a § for 1981 filing griev- (holding at 446-49 of limitations for ance does not toll statute disinclined, congression- in the face of We are action); Diss. at 1516. Title VII accord indepen- emphasis upon the existence al remedies, any posi- to infer of the two dence other, recognized preference Congress frequently one over the without tive legislation expression employees are often threat- a more definite individual only by employers un- has enacted.... but also ened not therefore, conclude, corruption, generally We of union ions—whether because unions,” "company Title VII and under "sweetheart dominated remedies available See, related, although deals,” e.g., arrangements. direct- although or other (remarks Wag- separate, Sen. Cong.Rec. most same ends ed to distinct, NLRB, ner), Legislative History independent. reprinted in above, 203(d) Act at 2333-34 National Labor Relations we believe the (1949); discussed As (remarks Rep. Cong.Rec. private expresses “positive preference” for dis- Bosch) (1959), legislative reprinted in 2 pute resolution. ” ing] among re- a rational accommodation’ procedures would that arbitration belief “ ” dispute’ and has ‘refused policies. these Technologies, solve United interests of the union ... defer where the Radio, (quoting N.L.R.B. at 559 National ” employee.’ the adverse to those of are 531). 198 N.L.R.B. at The Board’s defer- 268 N.L.R.B. at 560 Technologies, United policy simultaneously recognizes ment omitted); (citation NLRB General see also prompt for need resolution of ULP Counsel, Concern- Memorandum Guideline claims, importance of individual statu- Corporation Technologies ing United tory rights, on limitations Board re- 6, 1984), (March reprinted in Lab. sources, salutary and effects of arbitra- however, case, 344. In this Rel.Y.B. governmental tion and minimal interven- of such hos- suggestion no record contains disputes. Accordingly, tion in Hammontree union and tility between the policy Board’s deferment constitutes a rea- and, result, grievance procedures multiple sonable accommodation of its stat- resolving Hammon- hope some offer obligations. utory claim.32 tree’s discrimination reasons, For find that the these we Su- broadly, find that the Board’s More we in preme Court’s decisions Alexander and represents a reason- deferment policy of progeny controlling are not and that the of the Board’s able construction per- policy Board’s deferment constitutes a under the NLRA and authority and duties and construction of the missible reasonable long recognized Courts have the LMRA.33 NLRA and the LMRA. reviewing in “principle of deference” “ ‘involving] reconciling actions agency ” conflicting policies.’ Chev- [potentially] Consistency Policy 2. in Board at 2782 ron, at that, Finally, Hammontree contends omitted). case, (citations In this as dis- grievance ordering exhaustion of reme above, Congress has established cussed dies, departed from its estab the Board has paramount body” in labor Board as “the policies.34 emphasizes Hammontree lished 10(a), expe- called for the relations law § already pursued he related has two of discrimination claims ditious resolution the Board has never grievances and that 10(m), expressed pref- its “decided required a return to arbitration. before private settlement of labor dis- erence for without a differ But this is a distinction 203(d). As the NLRB itself putes” “ The fact that the union failed observed, ence. ‘duty to has it is the Board’s during grievance proceedings a Congress [by seek- raise objectives of serve the expressed multiple Labor-Management Reporting intentions and History Board, which, (1959). to the at 1616 issued numerous mandates Disclosure recognizes, in substantial ten- as the dissent absolutely in the record There is no evidence 32. objectives these manifold sion. Given duties, support the dissent’s assertion that the dis- assessing is limited to this court's role "a pute-resolution mechanism in this case is policy constitutes a reason- whether the Board’s grievance proceeding," Diss. at or sham meaningless among able accommodation these demands. proceeding,” id. at "drumhead for, unlikely, Empirically, it seems most 1516. argument, petitioner support 34.In above, first Hammontree's as noted was, cases, exemplified a number Hilton cites fact, successfully in his favor. resolved Corp., N.L.R.B. 562 and M & Hotels Inc., Convoy, G 287 N.L.R.B. 1140 that United Technol- The dissent’s contention cases, give the Board refused to each of these impermissible ogies under Chevron deferment is because the ar- deference to arbitration awards (1) unconvincing. dissent maintains II is adequately ULP considered the bitrator had not United Tech- that "no court has ever sanctioned” (because, example, the contractual 1512; claim for deferment, (2) nologies that defer- Diss. factually parallel). 1512-1513; issues were not abdication, ULP Diss. at ment constitutes cases, however, only involve the Board’s These "Congress did not intend" such and deferment, policy Spielberg post-arbitral deference under 1513; thereupon, the dissent Diss. progeny; concludes, of these cases does the and its in none inappropriate.” "Board deferral was question presented in this Board address the irrele- of these claims is Diss. at 1513. The first whether, inap- II; assuming that deference is analysis case: propriate, Chevron the sec- vant to our under true, pp. and a return to arbitration simply supra see 1496-1498. ond is deferment Thus, third, appropriate. emphasize the cases cited regard we With McDonald,1 denying deference (the discrimi- rentine particular argument awards, do preclusive effect to arbitral claim) not defeat the should nation I disposition of this case. not control prereq- deferment policy; if the deferment however, that this reject any suggestion, is suitable met and an issue uisites are distinc- any perceived rests on conclusion may require arbitra- arbitration, the Board post-arbitral deference between the sug- foregoing discussion And as tion. pre- and the raised in those question cases squarely fits claim gests, Hammontree’s ad- issue which we now arbitral deferment deferment Board’s established within the Alexander, look at Barren- dress. A close Technolo- and United policy Collyer McDonald, progeny, their tine and con- Thus, reject Hammontree’s we gies. logic driving the Court’s reveals any- Board’s order the tention preclude also holdings in those cases would applica- unexceptional thing more than or deferment of remedies exhaustion policy. deferment tion of its established the statutes involved. requirement for III. CONCLUSION Alexander, in Barrentine The Court Congress, in emphasized that McDonald the find that NLRA summary, we Rights Act of the Civil enacting Title VII from preclude the Board LMRA do not the 1964, amended, 42 2000e et as U.S.C. exhaust contractual a requiring claimant (1988) (“Title VII”), the Fair Labor seq. hears before the Board grievance remedies amended, 1938, 29 Act of as Standards claim. We also a discrimination (1988) (“FLSA”), and seq. 201 et U.S.C. § policy is deferment find that the Board’s 1871, Rights Act of section 1 of the Civil permissi- is informed a reasonable and (1988) 42 1983 now as U.S.C. codified Board’s various ble construction rights (“section 1983”), created individual obligations, and that the statutory any employ- independent of and remedies wholly consistent in this case was order See, rights and remedies. ee contractual Accordingly, deny the policy. we with that 54, Alexander, 94 at 415 U.S. S.Ct. e.g., at petition for review. (an employee filing a lawsuit 1022 EDWARDS, Judge, concurring. Circuit right asserting statutory “is Title VII posed in this case I not view the issue do process”); independent of the arbitration Indeed, in question. raising a as difficult 745, Barrentine, 101 S.Ct. at 450 U.S. at legal precedent established light of well independent of (“FLSA rights 1447 ... are commanding defer- (including case law the Thus, collective-bargaining process.”) on judgment ence to that a Title in Court noted Alexander chal- hand), I think that no serious at issue arbi- plaintiff need not between VII elect policy to the Board’s lenge can be raised tral and court fora because respect to issues. arbitral deferment with sep- “distinctly rights and contractual were however, indicate separately, I write enforced rights “be arate” and both could view, difficult why, my this is not a respectively appropriate forums.” in their points issue, underscore certain and also to Similarly, 50, at 1020. 415 94 S.Ct. U.S. disposi- critical to I to be our believe Barrentine, conclusion that the Court’s tion of case. independent of rights the FLSA created by the rights contractual was bolstered I. contained exhaus- fact the FLSA “[n]o 740, 101 requirement.” 450 the Su- tion U.S. majority agree I Alexander, 1444.2 The decisions Court’s Bar- S.Ct. at decisions preme Court’s (1981) (involving Standards Act contrary the Fair Board's Labor plaintiff are not Branch, 1938); City West 466 McDonald v. in this case. order 284, 1799, 302 U.S. 104 S.Ct. 80 L.Ed.2d Co., U.S. 1. Alexander Gardner-Denver 1983). (involving 42 U.S.C. § (1974) (involving 39 L.Ed.2d 94 S.Ct. 1964); disputes noting are suited Rights Bar that not all Act of VII of Civil Title Inc., binding with col- Freight for arbitration in accordance System, v. Arkansas-Best rentine lective-bargaining processes, Bar- the Court L.Ed.2d reme- possi- independence ence and of the two effectively foreclose the these cases VII, dies,” express preference for one Title under either bility of deferment sup- requiring procedures to be exhausted FLSA, 1983. Further or section procedures could be in- in Interna- before the other’s this view can be found port for Electrical, Id. at 95 S.Ct. at 1720-21 Radio & Ma- voked. tional Union of Inc., added). (emphasis Myers, v. Robbins & chine Workers then, Quite plainly, has viewed Court the Court Myers, In Robbins & simply requirement an exhaustion as incon- ex- rejected any notion that an effectively the notion of distinct and inde- sistent with could ex- requirement remedies haustion of I pendent remedies. thus view Johnson by holding that Title VII ist under having laid to rest Myers and Robbins & filing a Title VII claim statutory period any lingering doubts as to whether arbitra- during pendency of tolled not be would proceedings prerequisite could found proceedings. Court other such civil court Title VII and “virtually tolling fore- argument for actions.3 Alexander, had since Alexander closed” II. that the contractual clearly indicated mechanisms statutory dispute resolution can Although it seems clear that there Robbins independent of one another. were requirement of deferment under no arbitral 236, 97 at 446. 429 U.S. at S.Ct. Myers, & equally progeny, and its it is Alexander of remedies re- an exhaustion Were there authority line of clear that the Alexander VII, Title the Court’s quirement under distinguishable the case at easily from have Myers would holding in Robbins & funda- distinction rests on the hand. The rendering many effect of had the drastic the National mental differences between still claims time-barred while Title VII Act, amended, 29 U.S.C. Relations as Labor arbitration, hardly a result which would (“NLRA”), (1988) and the Labor 151-69 §§ the two reme- independence of preserve 1947, as Management Relations Act of 141-67, amended, dies. 171-87 29 U.S.C. §§ (“LMRA”), (1988) the statutes at issue also re- Myers in Robbins & The Court McDonald, Alexander, Barrentine, et Express Railway upon lied v. Johnson al. 454, 1716, Inc., 421 95 S.Ct. U.S. Agency, (1975), VII, held that section which Title the FLSA and Under 1983, emphasized private claim does not toll the that filing of a Title VII 42 for a claim under mechanisms and statu- period dispute limitations resolution independent reaching tolling separate tory Before claims are U.S.C. 1981. remedies; bargaining Johnson, held the collective the Court had under question statutes, however, in section ex- as manifested need not a section 1981 claimant 173(d) LMRA, 203(d) 29 U.S.C. The court Title VII remedies. haust his strong prefer- “disinclined, Congress expressed a in the face that was stated And private use of remedies. upon exist- ence for the emphasis congressional understanding my of the fore finding Consistent with no arbitral ex- cited two cases rentine cases, interpret asserting going federal courts have fed- lower requirement for certain haustion 12, remedies to mean that contractual statutory rights. at n. ed Alexander Id. 450 U.S. 738 eral bargaining applicable collective (citing afforded an United States Bulk at 1443 n. 12 101 S.Ct. 357, 351, prereq Carriers, agreement exhausted as a need never be Arguelles, 91 v. 400 U.S. Inc. protecting 412, 409, (employee proceeding under statutes uisite to 456 27 L.Ed.2d S.Ct. 40, (or rights. public Gibson v. Local Su law See remedies before exhaust contract need not 1259, Checkers, 1266 n. 14 of) percargoes & 543 F.2d asserting court under claim in federal in lieu workers) Cir.1976) (9th (relying upon in find Alexander regulating pay of maritime statute McKinney VII); R.R., requirement Title ing no exhaustion 357 v. Missouri-Kansas-Texas 1309, Works, 1222, 1224-26, 268-270, Steel 502 F.2d 2 Waters v. Wisconsin S.Ct. U.S. (7th Cir.1974) (relying part (1958) (claimant pursue on Alexan need not L.Ed.2d finding requirement under procedures der in no exhaustion before and arbitration denied, 1981), cert. bringing the Universal Mili- federal claim under Act). Training 48 L.Ed.2d tary and Service collective, VII, only opposed to by Title as individu- protected rights while al, rights subject individual in to union waiv- section 1983 are NLRA FLSA and nature, er, holding LMRA are de- expressly distinguishing the NLRA and the individual and collec- Alexander that a union signed protect both cannot waive its paramount their rights, and as rights. tive have employees’ individual Title VII through peace goal promotion of labor possibility of waiv- Court indicated manage- efforts of labor and the collective upon statutory rights depends er Thus, courts have the undivid- ment. while issue,” “purposes of the statute adjudicate claims of responsibility to ed that, VII, unlike Title the NLRA stated under Title VII individual discrimination “contemplates individual charged the Board is and section long the union so as the union be waived well-being of fostering the overall labor- duty good-faith rep- does not breach its relations, may be best management which Id. at 706-07 n. 103 S.Ct. resentation.” parties by requiring the accomplished at 1476 n. 11. disputes through con- to resolve their seek acknowledged This court well dispute resolution mechanisms. tractual may properly employee’s waive an union tellingly, in the Alexander line of Most Fournelle rights. NLRA individual cases, flatly reject- Supreme Court has NLRB, (D.C.Cir.1982), 670 F.2d 335-36 arguments suggesting that ed provision in found that a no-strike we agreement rights may be waived bargaining agreement collective waived disputes arising under a collective arbitrate employee’s right participate in or encour- Alexander, agreement. bargaining activities. And in American age strike (“rights at 1021 System, Inc. v. Freight 722 F.2d [by part Title form no conferred can VII] (D.C.Cir.1983), a 828 we held that where collective-bargaining process since the bargaining agree- in a provision collective rights of those would defeat the waiver relating as- ment to the refusal of work congressional purpose paramount behind analogous signments differed from an Barrentine, 740, VII”); at Title 450 U.S. provision, parties’ agreement NLRA the (FLSA rights are 101 S.Ct. 1444-45 employee’s the stat- constituted a waiver of abridged by and “cannot be “nonwaivable” utory rights. To have held that statu- contract”); McDonald, at 292 n. 466 U.S. contrary tory right parties’ survived Alexan- (relying upon 104 at 1804 S.Ct. noted, agreement, contractual we would der and Barrentine rejecting waiver have been to embrace rights). argument regard 1983 fallacy that there is a obvious ... [t]he contrast, explicitly has In stark the Court statutory apart contractu- issue from the that, repre- recognized because a union words, assuming, al issue.... In other interests, may collective it waive cer- sents arguendo, that an individual of its members. Met- rights tain NLRA right a under the NLRA to refuse to NLRB, v. ropolitan Edison Co. 460 U.S. pursue work in order to a contract claim (1983), 103 75 L.Ed.2d 387 S.Ct. only “justified” that is not in fact but long “recog- that it the Court stated had supported by “good faith” belief may that a union waive a member’s nized alleged right wrongdoing, that statutorily protected rights.... Such bargaining waived collective they valid rest on the waivers are because agreement in this case. representation presup- fair premise of Id. at 832. bargaining that the selection of the pose Likewise, in Local No. v. Union 2188 representative remains free.... Thus a (D.C.Cir.), cert. de 494 F.2d 1087 may bargain away its members’ eco- union nied, 61, 42 419 L.Ed.2d may rights, nomic but it not surrender recognized the court that rights impair employees’ choice of availability may effectively of arbitration Id. bargaining representative.” their 705-06, (quotation foreclose access to Board remedies. 103 S.Ct. at 1476 marks omitted). rejected argument point, acknowledged The Court On this court encouraging statutory rights case, waiver strong policy federal labor see Edison, disputes Metropolitan private grievance settlement of U.S. at require S.Ct. at the Board could still and found that is well established “[i]t deferment. This is so jurisdiction because Su- may decline to take preme Court has said in other if, contexts complaint judgment, in its Federal of a that, parties forgo even when do not sub- policy by leaving the is best served statute, rights they stantive afforded voluntary Id. at parties to settlements.” required agree- still to adhere to an on to 1090. The court then went observe statutory ment to claim. arbitrate Corp. Chrys- Mitsubishi Motors v. Soler poli- this declaration of believe that [w]e Inc., 614, 636-40, ler-Plymouth, 473 U.S. context cy applies pre-arbitral ... 3346, 3358-61, L.Ed.2d 444 S.Ct. post-award as in the context. We as well (1985); Express, Inc. Shearson/American supports pre- policy also believe that this McMahon, 220, 229-34, since the arbitral deferral 2332, 2339-42, only remedy procedure is situation, parties simply In such a sub- party from whom the Board left to dispute “in mit the resolution of their statutory relief. withholds arbitral, judicial, rather than a forum.” Id. Mitsubishi, 473 U.S. at 105 S.Ct. at cases, these I believe Consistent with And, noted, “[hjaving as the Court that, agreement pro- light parties’ arbitrate, bargain party made the requiring hibiting discrimination and arbi- should be held to unless itself tration, properly re- Hammontree was preclude has evinced an intention to a waiv- griev- arbitrate his quired by the Board to judicial statutory er of remedies for the pursuant the terms of the collective ance Thus, rights a find- at issue.” Id. absent parties to the bargaining contract. The Alexander, i.e., ing underlying of the sort agreement supplant chose to stat- collective rights and contractual analogous rights utory rights with created “distinctly separate” and that arbitration contract, they provided that under the adequately adjudica- cannot substitute disputes concerning those would be enforcing statutory a means of pursuant agreed-upon griev- resolved to an rights, clearly appropriate.4 deferment is procedure. Giving legal effect to that ance acknowledged power to If a union has the ordering agreement respects private of “statutorily “bargain away” employees’ responsibilities rights established NLRA, protected rights” under the through bargaining, collective and fosters certainly can decline to exercise its Board strong policy promoting labor of indus- takes the lesser jurisdiction when union peace through trial arbitration. Conse- step simply agreeing to have its mem- quently, Board deferment the case is arbitral, rather rights bers’ vindicated an clearly permissible. Board, Accordingly, Board than forum. Furthermore, might argued hardly problemat- is even if it be deferment in this case “clear and unmistakable” ic.5 that there was no parties recently expressed Mit intent to foreclose the

4. The Fourth Circuit has relied on holding Age choosing rights through and McMahon in that the subishi from to vindicate their ("ADEA”) Employment Discrimination in arbitration. preclude compulsory arbitration. does not Corp., v. Lane Gilmer Interstate/Johnson Although rationale 5. the Mitsubishi/McMahon — U.S. —, (4th Cir.), granted, cert. F.2d 195 theory waiver lead to the same and contractual the court case, i.e., in this affirmance of the Board’s result acknowledged agreement is that "an arbitration defer, approaches the two are an- decision to Congress only if has evinced an unenforceable theory, alytically distinct. Under waiver judicial preclude fo intention to waiver rights statutory rights, supplant contractual right, particular statutory or if the rum for responsibility arbitrator’s sole is to thus the by agreement procured fraud or excessive by the contract. Un- enforce the created power." The Court then economic Id. 197. McMahon, statutory rights legislative history der Mitsubishi and analyzed the structure and enforced, arbitral, only being had not are still the ADEAand concluded grant the Board does not de III. Since novo to claims which have con- review been properly limits majority its discus- arbitration, decision sidered the Board’s question us sion to the deferment before inevitably to defer a claim to arbitration to consider whether the today and declines ability to have diminishes claimant’s grant subsequently could deference the Board determine his claim. See NLRB grievance to the decision reached Inc.-Maxwell, Brothers, Pincus however, present holding, committee. Our (3d (under Cir.1980) F.2d Board’s hang as a loose strand in labor will not policy, deference “an award could arbitral rather, jurisprudence; quickly it will be only arguably which is correct be sustained pursuant into the fabric of labor law woven differently in a and which would be decided regulates the to which the NLRB exercise ”). surprise, is no how- trial de novo This Thus, I it is jurisdiction. of its believe ever, long for we have been aware of the important recognize some of the inev- practical consequences the Board’s de- implications upon of our decision itable policy. ferment claim, Hammontree’s and the claims him. those who follow example, years For more than fifteen holding today, ago, in we heard a The rationale behind our Local Union No. court, prior precedent of this case in which the Board had deferred a as the well arbitration, retaining jurisdiction quite clearly may that the Board claim to indicate only it did in accord considerable deference to the deci- to the same limited extent as grievance committee in this case. 494 F.2d at 1089. We rec- sion reached claimant, pursues ognized upon returning the event that Hammontree brings remedies and then his claim to the Board after exhaustion of his arbi- contract remedies, again before the Board. As the ma- tral would not be entitled to de once notes, review, and “the results of an jority opinion the Board has articu- novo policy very likely dispositive defer or will lated a arbitration arbitration (i) grievance long practice award so as: the unfair labor issue.” Id. at arbitra- Nonetheless, upheld tion/grievance proceedings appear to have we the Board’s (ii) noting regular; parties pre-arbitral policy, fair and all have deferment been 203(d)’s private agreed policy section in favor of be bound mechanism; (iii) “ap- dispute the result resolution of conflicts labor clearly repugnant purposes plies pre-arbitral ... context as well NLRA; (iv) policies post-award as in the context.” Id. at 1090. arbitra- adequately conceding fostering unfair “the tor has considered the While ... Corp., pre-arbitral policy claim. See Olin deferment] [the (1984).6 policy, N.L.R.B. 573-74 Consistent be detrimental to another viz.: policy, jurisdic- expressed by Congress granting this the Board retained in with power remedy tion of Hammontree’s claim for further the Board unfair labor id., only upon showing practices,” consideration a that ei- we found it “well estab- a) dispute ther: had not been resolved lished that the Board decline to take arbitration; b) if, griev- jurisdiction complaint judg- of a or submitted to its ment, procedures policy ance or had not been Federal is best served labor regular leaving parties voluntary or had fair and reached result settle- repugnant that is to the Act. ments.” Id. court, above, 1986) (remanding explana rather than forum. As I indicate I to Board for further theory standard), believe that contractual waiver is the tion of Olin it has affirmed various case, approach respects correct in this as it according Board doctrines considerable defer parties replace freedom of the waivable See, e.g., Bakery, ence to arbitral awards. Con rights negotiated through rights NLRA col- NLRB, fectionery and Tobacco Workers v. bargaining. lective (D.C.Cir.1984); F.2d 814-16 American 831-34; Freight System, 722 F.2d at Bloom v. directly

6. While this court has never ruled on (D.C.Cir. 1979). F.2d 1018-21 propriety the dard, of the Board’s current Olin stan Darr, (D.C.Cir. see 801 F.2d No. true that Local Union It is statutory rights in- alleged “congruence between the that a noted

we are, contrast, non-rep- overlying un- in this case dispute and the volved contractual charge” factor of the sort that Metro- was a resentational fair deferment, that, subject to suggests militating politan in favor of Edison interrelationship, bargaining. “the pursuant to collective such waiver without might Moreover, have constituted Hammon- abstention there is no doubt that deference, F.2d at griev- presents but abdication.” claim tree’s discrimination However, have found in this case we cognizable under the collective- ance that is the con- congruence Thus, requisite between bargaining agreement. the national statutory claims. The collec- tractual and dis- policy favoring arbitration of labor prohibits pre- bargaining agreement 203(d) tive putes, policy embodied section type of discrimination Hammon- cisely the recognized on numerous the LMRA and statutory claim. As the alleges in his tree Court, Supreme is fur- occasions notes, opinion fact majority policy, “[t]he by the Board’s deferment thered par- agreement] [collective-bargaining ... right Hammontree’s to seek redress while Hammon- Act does not mean that allels the preserved through for discrimination is only under either claim arises tree’s grievance mechanism. contractual agree- [collective-bargaining the ... Act or short, petitioner’s merit to chal- there is no claim arises under both.” ment] requiring lenge the Board’s rule claim- —the nullify cannot be allowed Hammontree use contract remedies be- ants to available simply by pursuing a claim his contractual the NLRA. I seeking redress under fore allegations His of discrim- statutory claim. judgment of the therefore concur under the contract state a claim ination court. NLRA, under the well as private resolu- preference for indicated its SILBERMAN, Judge, Circuit Consequently, the disputes. tion of labor concurring: defer Hammontree’s may properly logic Judge Although I find Edwards’ arbitration, notwithstanding that claim to unassailable, majority opinion join I “may dispositive of award be the arbitral (either did not articulate the Board because Local practice claim.” the unfair labor brief) Judge Edwards’ opinion or its F.2d at 1091. No. Union position. IV. MIKVA, dissenting: Judge, Chief outset, I this is believe As I stated Trilog as a truck driv- Hammontree works Paul easy case. the Steelworkers Freightways. The recognized contract er for Consolidated Supreme Court

y,'7 repre- bargaining is the choice Teamsters Union procedures as the fora of employees. for Consolidated’s collective- sentative arising under most claims member of the is a dissident with Hammontree agreements. Consistent bargaining Teamster of- union, having disagreed with agree enforced policy, the Court has The Team- on numerous occasions. ficials under section 301 ments to arbitrate understanding with Consol- ultimately had an might sters where it LMRA even promised union not to whereby the a matter idated the claim involves determined that on any employee grievances based press jurisdiction of the exclusive within rights if Consolidated seniority repre certain Board, a claim involves e.g., where available departure times for may post would rights presumably which sentational peddle runs. assignments called trucking agreement. by contractual not be waived grievance filed a nevertheless Corp., 375 Hammontree Elec. Carey Westinghouse v. (1960); United Steel- American America v. S.Ct. 7. United Steelworkers of Enterprise Wheel & Car Co., v. workers America Mfg. 4 L.Ed.2d Corp., 4 L.Ed.2d (1960); U.S. America United Steelworkers of Co., Navigation Warrior & Gulf won, seniority rights only employers based on his and but unions and if Land- —as Consolidated then discontinued its purpose rum-Griffin had no or effect. and, posting times after Hammontree by finding The court reaches its result unsuccessfully challenged that action at a equivocal plain language some of the stat- grievance proceeding, company second ute, reading legislative history in a by assigning retaliated him several undesir- manner, altogether ig- most selective and able runs. noring subsequent the clear directive from today The court tells Mr. Hammontree Congresses pay special prompt and at- complaints that he must take his for al- rights of the individual em- tention leged rights violations of his under the ployees. Brushing cogent explana- aside grievance to a national labor laws commit- proce- tions for the statute’s enumerated composed of tee members half from dures, gives the court deference to the hierarchy union’s and half from the em- National Labor Relation Board’s clear abdi- (It ployer. is as if a kid at school was new cation statutory obligations. of its Mr. try things told to and work out with the consigned Hammontree is ato never-never up two bullies who beat him rather than partisan land of proceedings where his principal discipline have intervene and rights may adjudi- under the law never be ruffians.) Inexplicably, the court re- long cated before the Board. If he works peatedly suggests “parties” that the con- enough, persistent enough, and is case, sented to such in this arbitration might (without someday review “party” when in fact the most concerned record) any explanation benefit a deci- with and affected discrimi- unlawful sion of the committee. The against nation him consented to such never sponsors champions and of the Landrum- expressly instead chose to dismayed Griffin would be to see such pursue complaint arising solely under the short shrift made of their efforts to build National Labor Relations Act. statutory protections against very kind While there have been a time when of abuse. Congress blithely equated the interests of I my colleagues wrong. think unions, employees subsequent and their ex- perience corruption with union the en- suing' passage of the Landrum-Griffin Act Discussion simple dichotomy

have erased such be- “management.” tween As This case involves the intersection of “labor” two observed, Senator Dirksen congressional when introduc- policies: preventing unfair ing legislation the labor reform in the 86th practices fostering the collective passage that would culminate bargaining process. Because the collective Act, of the Landrum-Griffin bargaining agreement between the Team- sters Union and Consolidated contains two developments in some areas of [r]ecent provisions forbidding company unlawful

labor-management relations have been against very disturbing. employees discrimination for exer- Some union officials forgotten purpose cising rights, have their union the court holds that represent employees is to existence deferring Hammontree’s discrimination bargaining. collective Some unions and charges to arbitration proper. How- employers have been careless of their ever, pursue since Hammontree did not obligations under, not to use the tool of collec- claims the non-discrimination clauses bargaining promote tive the interests contract, and never consented unions, management as such. claims, arbitration of his this is a They disregarded have and straightforward example of the Board abdi- interests of the individual worker. cating responsibility protect its rank-and- Cong.Rec. file workers from their own unions as well The court employers. as their today disputes writes if concern all labor appoint “any disputes or labor arbitrate Enactments Congressional A. agent, agency or to act as arbitra- person, Act. Wagner 1. The History Id., reprinted in tor.” of Wagner the dispute that can be no There Wagner Act, at 1305-07. the power exclusive the Board gave Act opposed vigorously proposals These were practices. Section labor prevent unfair groups spokesmen. and by various labor (1988), 160(a) Act, 29 U.S.C. 10(a) of expressed fears Several witnesses part: pertinent provides of system usher in a Wagner Act would prevent ... empowered The Hearing on “compulsory arbitration.” any unfair engaging in any person from Comm. on Edu. the Senate S. 8) (listed in affect- Section Before (1934) Labor, Cong., 2d Sess. 488 73rd not be power shall This ing commerce. (state 2926”) (hereinafter “Hrgs. on S. adjust- of any other means affected of the George H. Powers on behalf of ment or has been prevention or ment Corp.), re Bethleham Steel of law, Steelworkers or oth- by agreement, be established Wagner History Act, at printed erwise .... 522; the Sen Hearings S. on Before merely that the section contends The court Comm, Labor, 74th Edu. ate on way in no con- Board and “empowers” (hereinafter 811-15 Cong., 1st Sess. disputes to to defer its strains discretion ”) Wein- (speech of Louis “Hrgs. on S. 1958 correct, it is If this is private arbitration. AFL’s stock, Secretary of the National why proviso hard to understand Unemployment Insurance for Committee necessary. In was even second sentence History Relief), reprinted in legislative histo- fact, Act’s a review of com These Wagner Act, 2197-2201. at motivation, an alternative ry demonstrates of arbi conveyed a clear distrust mentators private let not to namely a clear directive have been that “workers Noting congres- tration. the Board’s parties interfere argued past, Mr. Furthermore, betrayed” in the Powers function. sionally mandated arbitra compulsory system of “[a]ny majority’s suggestion, contrary to the automatically in favor of Act its subse- would history of the legislative 488. Mr. there is company.” Hrgs. on S. at confirms that quent amendments in con preference for even more strident generalized no Weinstock employee’s trump provisions: demning individual the arbitration that would 10(a) Board con- to have the right under § char- actions have been the boards’ All of charges. his discrimination sider designed de- delays by long acterized Act, Congress Wagner debating the fighting destroy the moralize and pass several bills failed but considered spirit of the strength workers.... authority very same deferral containing the mea- the arbitration maintain that We origi- The today discovers. the court at aimed in this bill are inherent sures bill, by Sena- introduced of the version nal over control forcing Government allowed would have Wagner in tor their workers to defeat rights of the jurisdic- to “defer exercise the Board interests. practice in unfair labor tion over such also at 813-14. See Hrgs. on S. means there is another any case where (statement at 716-17 Hrgs. on S. by agreement, provided prevention Century of the Twentieth H. Davis William otherwise, law, has not been code, which History Inc.), Fund, reprinted 10(b), original Senate S. utilized.” Wagner Act, 2102-03. (1935),reprint- Cong., 1st Sess. 74th print, intro- predecessor bill hearings Legislative History on ed in of the Cush, before, Na- year E.P. duced Relations National Labor and Metal Wagner the Steel President of “History tional (hereinafter Union, summarized Industrial Workers Senate bill early version Act”). would that deferral employees’ concern provi- general arbitration also contained a and unions by companies collusion directly permit have let the Board sion would deprive the workers of their language fundamen- that would broadly allow deferral protections against tal practices: arbitration, unfair of claims to response expressed by concerns witnesses about the Wagner] says, “We will amend [Senator risk of collusion between unions em- the bill so that the board shall arbitrate ployers. Instead, Congress opted for the only agree when both sides to submit to empowering language 10(a). Con- § arbitration.” will What this mean to the trary to the emphasis court’s passage on a rank and file the majority of the suggesting specific that the arbitration lan- American working class? Who are the guage was only deleted per- because of a “both sides” recognized by to be this redundancy, 1492, ceived Maj.Op. see at bill? [Every ... decision will swing] fact precise remains deferral au- against the history worker. The of arbi- thority the Board now seeks was spelled tration boards has many recorded bitter out in the House and Senate bills but sub- instances and experiences prove which sequently deleted any suggestion without this conclusively.... contention [Union] Report Senate Committee always bureaucrats are ready to submit language 10(a) final already gave the § to arbitration. It has been their slavish authority. Board that The Court restores policy years. for very procedure Congress deleted. 2926, 492, Hrgs. on S. at reprinted in 10(a) The court suggests that places no History Wagner Act, at 526. While of the limits on the authority Board’s delegate the rhetoric is Mr. strong, Cush could have or defer true, If enforcement. this is then talking been about Paul Hammontree’s several specific delegation pro- or deferral complaint here. (:i.e., 3(b), 10(a)-(c), visions (k), 14(c)(1) & §§ After strong opposition voiced, Act) superfluous they since the Senate deleted Committee the deferral would presumably be available under the language from the version sweeping authority deferral that the court of the bill that subsequently became the 10(a). discovers in The rewrite Wagner 1958, Act. See S. second Senate glaring. scheme is History Wagner print, reprinted in of the Even the explanation why for Cong.Reo. 2291, 2295-97; at Act, 7651- Congress the language settled 52, reprinted in History Wagner of the 10(a), namely aas reaction to the exces- at Act, 2354-55. “The committee power sive then quasi-private vested in in- does not believe that the Board should boards, dustrial underscores the hazard of serve as an arbitration agency. Such deferring “bipartisan” committees that work, conciliation, like might impair its operate “in an atmosphere of conciliation standing interpreter as an of the law.” compromise admirably S.Rep. No. Cong., 74th 2d Sess. 8 suited to the wage settlement of and hour History (1935), reprinted in Wag- of the disputes” but are ill-suited to ensuring that at 2307. The various versions of Act, ner employees all protected against were dis- the bills pending before the House of Rep- S.Rep. crimination. (the No. at 4-5 resentatives also indicate that the sections Act must be “enforced ... rather than providing for deferral and arbitration were by compromise; broken and its enforce- considered and Compare later deleted. ment governmental must reside with rather Sess., H.R. 74th Cong., reprinted 1st quasi-private than agencies”), reprinted in History Wagner Act, of the History Wagner Act, at 2304. As of the 2468-70,- with H.R. 74th Cong., 1st explained below, the Teamster Joint Griev- History Sess., reprinted in Wagner ance operate identical, Committees in Act, equally objectionable, fashion. Even points The court to the fact that Wagner Senator recognized that “[t]he Report Senate Committee never explicitly practical letting effect of each industry disclosed the changes. reasons for the But bargain and haggle 7(a) about what section the result had clear antecedents: means is that the groups weakest who need made a conscious adopt decision not to protection its basic most receive the least.”

1509 disputes arising appli- over the 50-51, reprinted in at Hrgs. on S. Wagner interpretation existing of an History at 1426-27. cation or Act, the of bargaining agreement. collective clear, then, the that even before is It 10(a) that is am- majority contends passed in The § Act was Landrum-Griffin congres- light competing Act in Wagner biguous the of this sections of the substantive centrality promote the of to collective bar- already directive demonstrated sional Indeed, concurring unfair labor workers from one of the safeguarding gaining. easy as discrimination. the practices such finds this an case because judges protect to expressed its desire consistently agreement “parties to the chose collective discrimina- against individual worker analogous the supplant statutory rights with to This or his union. employer his contract....” rights created under the congres- by the extensive highlighted require any appli- case does But this of the concerning perils the sional debates the interpretation of collective cation that “company-dominated union” so-called agreement, bargaining and Hammontree See rights the of workers. protect fails statutory pro- agreed give up never (1935) (remarks of Sen. Cong.Rec. 79 7570 very by the against discrimination tections History Wagner), reprinted in the of bargaining agree- the collective parties major- Wagner Act, the While at 2333-34. nothing that would dilute There is ment. Wagner Act was of the ity-rule provision 10(a). unambiguous of command § the union with that to ensure designed 203(d) generalized prefer- fact, is not the § support would be greatest dispute that private resolution for ence all representative for bargaining exclusive of the Taft- suggests. The version court Congress maintained employees, passed the House would Hartley Act Act of the provisions non-discrimination 10(a) of deleted sentence have § employees even protect individual would defer, but ability to the Board’s limits S.Rep. No. help. See their union’s without retained the sen- Committee Conference History 13, reprinted at in of the private prevent order tence Wag- Wagner Act, 2312-13. As Senator existing remedies. supplanting from action debates, prohi- “the during floor ner stated H.Rep. Cong., 1st Sess. 80th No. practices ... certain unfair labor bition Legislative NLRB, (1947),reprinted in 52 free to make the worker intended [is] Management History Rela- of the Labor Cong.Rec. (1935),reprinted 7574 man.” (1948), at 556. Act tions Wagner History Act, between these potential for The tension Taft-Hartley Act. 2. The chal prompted numerous policies has two of the the Board’s administration lenges to dis- preference for arbitration The U.S. See, Strong, 393 e.g., NLRB v. Act. interpre- application or involving the putes 541, 544, 21 L.Ed.2d 357, 360, agreement bargaining of a collective tation that in made clear (“[I]t has been 203(d) of the Labor- was added § authority of circumstances (“Taft-Hartley”) some Relations Management are over of the contract and the law Board initially charging the After in 1947. pre neither regimes, concurrent lapping, practic- preventing unfair labor Board other.”); Darr v. Act, empting the Congress sub- Wagner through the es (D.C.Cir.1986) (expressing preference a limited F.2d sequently carved out deferral bargain- about allowing parties to collective doubts for light claims any disputes over to resolve ing agreement unfair 10(a)). upon 203(d)and agreed in a manner between agreement § tension § 203(d) reemphasized, recently Accordingly, just section Supreme Court by them. 203(d)'s 173(d), provides however, scope of Act, 29 U.S.C. narrow dispute resolution. private part: pertinent preference —Works, Ring Groves Screw agreed by a method adjustment Final L.Ed.2d 508 —, hereby parties is declared by the upon preference ex- held that Court for settlement the desirable method pressed 203(d) apply does not to con- 3. The Landrum-Griffin Act. provisions reserving tract non-peaceful Perhaps nowhere congressional con- dispute methods of resolution such as cern well-being for the of the individual strikes. employee powerful vis-a-vis the union more manifest than in the Landrum-Griffin Act The majority suggests that, since Ham- (the Labor-Management Reporting and claims could also have statutory montree’s 1959). Disclosure Act of The Act was brought been parallel under the non-dis- passed at a time when corruption union crimination clauses in the collective bar- perceived widespread was to be and individ- gaining agreement, statutory these claims employees powerless ual prevent were necessarily application involve the or inter- response, abusive union tactics. title I pretation of the trigger contract so as to of rights Landrum-Griffin created a bill of 203(d)’s preference for arbitration. for union members guaranteeing equal Maj.Op. argument at 1493-1494. This is rights employees, for all including freedom disingenuous. To borrow the abstention speech right of and the to sue. See analogy used pre- court to describe (1988). U.S.C. It is clear from the deferral, Maj.Op. arbitral the ma- legislative history of Landrum-Griffin that jority suggest cannot mean to that a feder- longer no willing to assume al court must plaintiff abstain whenever a rights that of employees individual (but not) could have parallel invoked did adequately protected would be by the un- rights under holding state law. ions. Neither unions employers nor could Taft-Hartley only preempted state law safeguard be trusted to the interests of all required if it interpretation of a collective employees. their bargaining agreement, recently Court In some few cases men who have risen to nothing noted that “there is novel about positions power of responsibility and recognizing rights that substantive within unions have abused power their labor relations context can exist without neglected their responsibilities.... interpreting collective-bargaining agree- hearings The of the McClellan committee Lingle Norge Div. Magic ments.” of have shown employers have [also] Inc., Chef, 399, 411, cooperated often with and even aided 1877, 1884, crooks and racketeers in the labor move- ment expense at the employ- of their own preference for arbitration simply is ees. not involved in a case where the S.Rep. voluntarily submitted his discrimi- No. Cong., 86th 1st Sess. 6 Legislative

nation claim to reprinted (1959), arbitration. The court’s History Labor-Management reasoning may encourage well the routine of Re- porting inclusion of provisions (1959), contract merely at 402 Disclosure Act “History (hereinafter incorporate the National Labor Relations Landrum-Grif- byAct Recounting concerns, reference. If this wipe fin”). does not the same out House rights guaranteed Report Committee to rank- concluded that “it workers, and-file is essential certainly practices union assures that procedures be their vindication democratic and substantially they will be dimin- recognize protect unnecessarily rights ished and the basic delayed. Ham- the union members and employees rep- montree has not “nullified” his un- H.Rep. resented unions.” der the No. 86th bargaining agreement; collective Cong., reprinted 1st Sess. 7 in His- he has consciously decided not to invoke tory Landrum-Griffin, at 765. them. The court’s fear might that unions circumvent arbitration provisions by filing Speaking support Landrum-Griffin, charges through see Congressman Bosch noted that most cases employees, individual Maj.Op. (since at 1494 n. is unfounded brought discrimination before the Board faith) the Board police good can are filed employees, individual not un- clearly not the situation here. Many ions. of such cases involved “so-

15H H.Rep. Cong., 86th 1st Sess. agreements un- No. between called sweetheart History (1959), reprinted in activ- employers and similar ion leaders and of Landrum- policy at 785. The Board’s current Griffin, their are denied in which workers ities deferring individual discrimination cases Cong.Rec. (1959) (re- rights.” squarely conflicts with this to arbitration Bosch), Rep. reprinted in Histo- marks of cases congressional command that such ry As at 1616. Con- Landrum-Griffin, by the Board. given priority treatment recognized, without Bosch gressman that, by deferring an individual em- protection, speculates The court government employer possible, the against many claims as powerless ployee Thus, expedite such claims Board’s cur- Board is better able to union bosses. and aggregate. Maj.Op. 1494-1496. See deferring individual unfair policy of rent sweeping I not doubt that deferral of do to commit- practice claims labor practice clear the unfair labor claims will company repre- and union composed of tees expeditiously, just as Board’s docket more statutory primary its interdicts sentatives I the courts could do some docket am sure rights of indi- protect the responsibility to deferring anytime the defen- clearing by employees. vidual go to an of his or dant wanted to arbitrator rights of codifying the In addition to choosing. efficien- her But administrative internal regulating union members expressed by cy certainly goal was not the stamp out unions in order to affairs of 10(m). Congress in has an Hammontree § corruption, Landrum- racketeering and right priority individual treatment 10(m) to the National also added Griffin § just so the Board that cannot be sacrificed Act, providing that Relations Labor brought by discrimination claims others discriminatory la- give unfair Board should fact, processed easily. more In both can be arising claims practice bor § today the court and the Board concede except other cases second- priority over all “delays” the consideration of an deferral 160(m). Ac- boycotts. 29 U.S.C. ary See § Maj.Op. claim. See individual’s Mundt, cording to who introduced Senator 10(m) permit does not at 1497. Section amendment, 10(m) intended to this delay. Congress told the Board such em- problem of the individual redress “given pri- claims discrimination should job wages his as a ployee who loses wrong ority,” majority is to read behavior; discriminatory he ex- result of vague delegation. It is no this as a delays hearing plained that the Board often agency expertise to an exercise of sense present, majority a vast such cases: “At possible will many claims as hope that as hanging on the vine for these cases are left any effort simply go away without years.” amounting to period, sometimes delay, this The circumstances of Board. Cong.ReC. (1959)(remarks Sen. his union individual at odds with both History Mundt), reprinted in of Landrum- egregious. employer, particularly and his is By introducing mea- at 1253. Griffin, sure, sought Mundt to extend Senator Interpretation Agency Statutory B. n theindividual priority the same treatment Practice companies accorded faced that the Board has to overcome all The court secondary boycotts. id. legislative history hur- plain language and provision bill contains a The committee reach the to even dles described above require the National interpreta- would ... which the Board’s question of whether give priority Board to enti- Labor Relations reasonable and tion of the statute was discrimination_ evaluating Inas- involving cases tled to deference. provisions, discrimination cases often of these much as such Board’s construction job, acknowledges guided that it is employee’s loss of the court involve himself articulated Chevron consequently principles the livelihood of 837, 842-43, NRDC, committee be- Inc. v. dependents, and his U.S.A. 2778, 2781-82, 81 L.Ed.2d 694 priority treat- 104 S.Ct. such cases warrant lieves (1984). Chevron, first look we must Under ment. meaning individual, ma plain to the of the Act. The allowed the Board to defer jority preoccupied ambiguity practice so with the is non-contractual unfair 10(a) perceives standing alone that it claims to arbitration. adequately interplay fails to address the establishing The lead case the Board’s expound provisions other in the Act. “[I]n pre-arbitration Collyer deferral doctrine is ing statute, guided by single we are not Wire, 192 N.L.R.B. 837 Insulated sentence, of a sentence or member but look Collyer, legal the Board held that if the law, provisions of the whole and to question employer of whether the has com- object policy.” Dole v. United mitted an unfair labor also deter- — America, —, Steelworkers of employer mines whether the has violated 929, 934, bargaining agreement, the collective then it (internal omitted); quotes Amalgamated would send the case to and de- Skinner, 894 F.2d Transit Union fer arbitrator’s decision. The Board (D.C.Cir.1990). language When the allowing bring noted that the union to such 10(a) legislative in tandem with viewed a claim before it would violate the union’s parts intent other of the Act and with commitment to arbitrate contractual dis- (especially light in the Landrum-Griffin putes. 192 N.L.R.B. at 842. The un- amendments), statutory question can practice fair labor issue was whether the step be settled under one of Chevron rath 8(a)(5) company by violated of the Act lazy er than shunted into the deference of unilaterally altering the terms and condi- step two. I that the Board violated believe employment changed tions of it when Congress’ intent clear when deferred pay job rates for certain classifications. statutory if Hammontree’s claims. Even recognized adjudicating The Board two, however, proceed step we must statutory essentially required claim ignoring require in court errs Chevron’s interpretation application of the terms gauge the ment that a court reasonable bargaining agreement, of the collective agency’s interpretation by ness of an look special expertise task within the of an arbi- ing at the statute as a whole. trator. There are cases where the tension cre expressly approved application We policies expressed ated the twin Collyer deferral rule two cases by deferring Act can best be resolved to a prac- where resolution of the unfair labor grievance proceeding. This court has al claim required interpretation tice prac lowed the Board to defer unfair labor bargaining agreement. collective See As- require interpreta tice claims that contract Press, (employer sociated 492 F.2d at 666 NLRB, tion. See Associated Press v. claimed union’s demand for dues col- (D.C.Cir.1974); F.2d 662 Local Union No. pursuant lected to authorized “checkoffs” 2188, NLRB, (D.C.Cir.), IBEW v. 494 F.2d 1087 practice); constituted an unfair labor Local denied, rt. ce (un- Union No. 494 F.2d at 1090-91 (1974). Likewise, other cir employer unilaterally ion claimed that had permitted cuits the Board to defer have changed promotion status of certain employee requested where the has arbitra employees). In Local Union No. it, very tion on the issue before add, however, court was careful to that if employee request. has not withdrawn that “congruence between the contractual (8th See Lewis v. 800 F.2d 818 dispute overlying and the unfair labor case, Cir.1986). But until this no court has charge present, ... were not the Board’s employ ever sanctioned deferral where the might abstention have constituted not def- request por ee did not arbitration and no erence, but abdication.” F.2d at 1091. upon tion of the claims rested a contractual precisely Abdication is what the court con- preference matter. The Board’s own dones in this case. 203(d)’s implicate poli arbitration cannot cy encourages adjustment through The Board announced an extension of the doctrine, procedures bargain shifts, contained in Collyer collective after a series of ing agreements. Corp., We have never before Technologies United 268 N.L.R.B. case, agree did not to arbitra- Hammontree Technologies, the (1984). In United though claims and even of his discrimination those deferred to Board any ques- charge wholly separate filed from practice claims are labor the unfair under union interpretation. coercion was for unlawful tions of contract the union Relations procedure Labor of the National an additional merely created any necessarily implicate did not claims. whereby Act and it could arbitrate bargaining the collective construction a conscious Absent waiver cannot claims Deferral of such agreement. statutory rights or a decision of those mandatory squared be parallel those effectuate practices, remedy unfair labor obligation provisions of the collec- non-discrimination ex- Technologies I believe United agreement, Board deferral bargaining tive beyond what principle Collyer tended inappropriate. in Local Union had made clear this court date, Moreover, late it is not even at this to allow intend Congress did not No. 2188: adopted ap clear that the Board involving cases Board to abstain deferral pre-arbitration plied a consistent of a collec- application any interpretation or such as Hammontree’s. rule in cases’ agreement. It should bargaining tive N.L.R.B. No. Corp., Mills Cone event, that, the union pointed out (1990), 1109n. 13 L.R.R.M. contractually had Technologies United court remand the merits after this reached procedure. agreed to an arbitration in Darr. the initial deferral order ed considered the Only one other court has Corp., 287 N.L.R.B. Hotels Hilton doctrine, its deci Technologies United the unfair where rested that case deferral in affirm sion to brought upon the conclusion of charge was agreed had parties “all on fact that the issue, contract the on a related NLRB, F.2d 800 v. See Lewis be bound.” after its initial the merits Board reached case, Cir.1986). 818, (8th In the Lewis 821 remanded Harberson deferral order had, employee’s knowl the the union 977, (10th NLRB, F.2d 983-84 Cir. v. consent, the arbitra edge commenced Service, 1987). Postal In NLRB v. U.S. filing of prior to the process tion-grievance (10th Cir.1990), 482, the 906 F.2d 488-90 claim, practice labor unfair Board did not held Tenth Circuit that not been with had demand for arbitration declining to defer an its discretion in abuse merely recog Eighth Circuit drawn. practice claim to arbitration. unfair labor may choose to raise employee nized that an footnote, re the court accompanying In an pro before statutory claim arbitration a history of the counted unfortunate Board, be bound ceeding to the policy, not deferral pre-arbitration belongs That choice that choice. dramatically explicitly and it “has ing that Board, and the union or employee, not past in the thirteen changed policy twice deferral would authorize nothing Lewis at n. 7. years.” Id. when the em Technologies under United case, it decided this the Board Even after to arbitration. consented has not ployee in another not to premised a decision defer Corp., Stores See also Wertheimer con- between the same distinction case on (1954) rec 1434, (refusing to N.L.R.B. in- interpretation statutory tractual because ognize an arbitration award volved here: outset, had, from discharged employee ..., Board found Collyer hearing by a desire to secure his announced suited to “eminently well reso- case was Law Board). The Administrative con- because lution arbitration” “[t]he differ appreciated the in this case Judge meaning” were “at cen- and its tract individual, opposed to “an well: ence as That is not dispute.” ter of [the] not have organization, should labor here, meaning of the where situation machin grievance to the contractual resort any part of not constitute does contract raised of issues ery possible resolution defenses dispute.... the instant charge.” [T]he practice Ham in an unfair labor the unfair Respondent raises montree, In this N.L.R.B. at 1267. practice allegations primarily 8(a) Act, revolve contained in sections 7 and policies.... the Act and its “The around although 29 U.S.C. & §§ questions presented are therefore not suggests counsel for the Board now interpretation.... ones of contract parallel the inclusion of non-discrimination questions concerning They legal provisions parties’ bargain- collective special compe- which are within the [Act] ing agreement may have waived Hammon- than tence of the Board rather of an statutory right tree’s to be free from dis- arbitrator.” engaging protected crimination for activ- Lines, 296 American Commercial N.L. ity. employee’s A statutory waiver of R.B. No. 133 L.R.R.M. 1102 n. 8 rights may not be found unless it is “estab- (1989) omitted). (citation The Board tries clearly unmistakably.” lished Metro- distinguish by pointing out this case NLRB, politan Edison Co. v. 460 U.S. parallel it did not involve a non-discrimina 708-09, 1467, 1477-78, 103 S.Ct. 75 L.Ed.2d bargaining provision in the collective (1983) (Courts “will not infer from a agreement interpreta but rather concerned general provision par- contractual agreement. tion of an informal settlement statutorily protected ties intend to waive a so, explanation Even the Board’s own in right undertaking ‘explicitly unless the (and American recent Commercial Lines ”). provi- stated.’ Nor does the arbitration cases) deferring of not in such statutory rights sion itself waive the appear would to buttress the distinction might settled in pro- already statutory evident in the scheme. ceeding. See id. at 708 n. 103 S.Ct. at Even if this case appro- were otherwise 12; Brands, 1477 n. Barton 298 N.L.R.B. priate deferral, reviewing for such court No. 135 L.R.R.M. 1025-26 vacillating should accord the Board’s inter- (“[A]n agreement specific to arbitrate a pretations particular of the Act no defer- discharge, more, without does not meet the ence. See Packard Motor Car Co. exacting require standards we of a waiver 485, 492, 789, 793, employee’s of an statutory rights.”). As (1947)(“If obliged L.Ed. 1040 we are observed, previously this court has “[a]n depend upon interpretation administrative does not waive light finding for in meaning of the right practices to be free from unfair labor statute, inconsistency of the Board’s by being party virtue of his ato collective dark.”). decisions would leave us in the bargaining agreement; he is entitled to a Although the court should be commended in complaint fully forum which his is trying bring to coherence to the fairly NLRB, aired.” Bloom v. 603 F.2d practice Board’s sometimes chaotic deferral 1015, (D.C.Cir.1979). (arguably a task that should be left to remand), The majority’s evidently position' Board on resolution Board takes a controversy this case is at is more nuanced odds than an actual waiver statutory with the scheme theory, merely crafted Con- suggesting only that it will gress years. over the While deferral statutory right defer cases where the at an be warranted when unfair labor issue is A theory pro- waivable. similar requires interpretation applica- claim Edwards, posed in to Arbitration Deferral bargaining agreement, tion of the collective Duty Bargain: Waiver A contemplate did not such deferral Way Everlasting Possible Out of Confu- employee brings when an individual a claim NLRB, sion at 46 Ohio St.L.J. 23 under the National Labor Relations Act (1985). This distinction between waivable nothing that has at all to do with the collec- and statutory rights, non-waivable ex- bargaining agreement. tive pressed for the first time counsel at oral argument, appears past nowhere in C. The Waiver Doctrine deferral cases and was not made clear in disputes No one the fact that Hammon- the decision to defer charge. Hammontree’s practice charges proper- tree’s unfair labor See Darr v. 801 F.2d ly prohibitions arise under the (D.C.Cir.1986)(“[T]he substantive Board does not ex- plicitly theory statutory rights set forth a waiver or even employees of individual legitimately consider a union can present grievances whether public their before a employee’s rights waive an individual un- forum could not be denied the existence Act, der Section and if private dispute of a resolution mechanism. agreement so whether the in this case has Gardner-Denver, In Alexander v. 415 U.S. so.”). Although in fact done the court in 36, 59-60, 1011, 1025, 94 S.Ct. 39 L.Ed.2d question Darr whether a “reserve[d] (1974), rejected the Court deference to employees’ protec- union can waive NLRA arbitration of a discrimination claim under against tion discrimination based on the Title A point VII. similar was made employee’s activity union in return for dif- Barrentine v. Freight Sys- Arkansas-Best bargaining rights,” ferent collective id. Inc., tem 8,n. 1408-09 the same concerns about de- (1981), L.Ed.2d 641 discussing employ- an ferring employee’s charge retaliation rights ee’s under the Fair Labor Standards grievance proceeding a sham arise whether Act. 8(a)(3) rights. or not he could waive his § While courts should defer to an arbitral position The Board did not take the employee’s decision where the claim is appropriate deferral was because Hammon- rights arising one that is based on out of tree had or could have waived his bargaining agreement, collective differ- rights, entirely and this would be an differ- ent apply considerations where the em- Indeed, ease if ent had it done so. there ployee’s rights claim is arising based on waiver, the Board would not even have designed provide out of a statute mini- defer, Concurring the discretion not to see guarantees mum substantive to individu- Opinion proposition dubious al workers. 10(a) light of the clear command in Finally, Id. at 101 S.Ct. at 1443. authority prevent the Board’s unfair la- City Branch, McDonald v. West practices by agree- cannot be affected bor ment. employ- Court decided that majority The Ar maintains that because ee’s Amendment First could not be bargaining ticles 21 and 37 in the collective left to arbitration so as to foreclose suit in agreement parallel the nondiscrimination federal court under 42 U.S.C. guarantees Act, Hammontree’s majority distinguishes properly claims of retaliation can these deci- be sub However, statutes, mitted to on other arbitration. fact sions based but the thereby ignores Supreme union claims to have bolstered court Court’s employees’ protection against teachings question discrimina general clear on the by negotiating the inclusion of these deferring employees’ claims to arbitration. provisions the contract would not de “Although analysis question the of the un- prive preexisting Hammontree of his statu distinct, quite theory der each statute is the tory right bring to a claim under section running through these cases is” the same. the Board. An before indi Atchison, Topeka Ry. & Fe Santa Co. v. right freely engage in vidual’s union Buell, 557, 565, 1410, U.S. activities without fear of retaliation exists (1987). Alexander, independently of contract and cannot the Court noted that had also by be diminished or diffused its reiteration contemplated public pri- access to both bargaining agreement. in a collective Cf. charges vate forums for the resolution of Elec., Local Internat'l Union etc. of under the National Labor Relations Act: (D.C.Cir. 727 F.2d v. statutory right underlying “Where the a 1984) (non-economic rights employees particular may abridged by claim not be under the Act are not waivable same agreement, contractual the Court has rec- rights affecting extent as economic union ognized that consideration of the claim officials). dispute the as a arbitrator contractual un- contexts, analogous Supreme collective-bargaining agreement the der the repeatedly preclude subsequent Court has made it clear that does not the consideration of an unfair consideration right to de novo practice labor as an unfair by the NLRB Board. by the practice claim labor at 1020. 94 S.Ct. charge.” this, risk of the such as where In cases deferring to for not of the reasons One aggrieved em- against an bias structural possibili- in these cases was arbitration obvious, review on even ployee is careful fully pursue an not would ty that the union employee’s that the not assure appeal will rights. In Barren- statutory employee’s ex- including priority rights, inter- that the tine, recognized the Court 10(m), fully protected. are pressed in § may well employees of rank-and-file ests by the Teamster method used Under might A union diverge the union. from Committee, “bi-partite” Arbitration Joint claims the individual sacrifice legitimately number consisting equal panel it is believes employees for what certain representatives hears employer union and the work force. good of greater initial If the employee’s grievance. 1445; Vaca 101 S.Ct. at deadlocked, proceeds grievance panel is 190-91, Sipes, 386 U.S. line. level, up the and so on next (1967). Certainly, 916-17, 17 L.Ed.2d time will telling how much is no There labor-management arbitration joint fully ex- Hammontree elapse before might well choose issue here committees at ma- dispute resolution private hausted griev- employee’s particular to address appear again before chinery can once give-and-take generalized through ances discrimination if when his the Board interests, instead of union/employee arrange- rejected. charges are Such enforcing the terms conscientiously satisfy requirements ment fails to fully appreci- majority fails to The statute. Board imposed on diligence interests of the possibility ate it clear Act. Nor Landrum-Griffin of the em- diverge from may those union dutifully pro- employee who whether an odds Indeed, was at Hammontree ployee. outset from the loses to arbitration ceeds restricting him leadership; his union’s practice bring an unfair right his antag- proceeding where to a drumhead 10(b)if complaint before frus- protectors as his are onists viewed than a more process takes the arbitration goals of the Act. trates un- the Board will months. While few the six running of month doubtedly toll the Remedies D. Exhaustion case, in Hammontree’s period limitation the Board first others who come solely an and for that this is The court contends arbitration, what being sent back to before question and does remedies exhaustion of arbitra- happens to workers who wait judicial review in subsequent foreclose not their pursuing stat- before tion to conclude rejects Ham- grievance committee case the the Board? utory rights before claim unfair labor montree’s that decision. summarily affirms the Board in the Team- There other deficiencies may ease the that characterization While well grievance mechanism sters’ conscience, reality. ignores court’s review exhaustion. hamper after effective suggest what amply precedents the traditional This is happen dispute if Hammontree’s will their parties submit sense where it will hearing no party. is ever concluded: proceeding After a neutral third according significant claim, again, committee yet joint defer doubt individual’s grants decision. A either denies private the arbitrator’s deference to meets explanation decision bears of an arbitration a word challenger the claim without kept, repug- is there showing it was no record of its decision. Since the burden statutory way knowing that the indi- simply issues of or that the is no nant to the Act decided, fairly let Corp,, has been Olin vidual’s claim fairly decided. were See curt decision. for the (1984). grounds An individual’s alone the 268 N.L.R.B. 573 unacceptable particularly a scenario is an arbitra- Such right to have the Board review is, as in this employee if the highly defer- individual tor’s decision under Olin’s leadership. case, union at odds fundamentally unlike the ential is standard

1517 effect, system adequate- holding subjects Teamster does not the court’s “[T]he arbitration, compulsory Hammontree to a ly protect management the individual from regime anathema effect, that is to the clear intent discrimination. In it man- or union contrary country’s of to this negotiation whether the statute dates over general system disdain for such a of dis- places alleged has been violated and pute “Congress expressly resolution. has deciding position violators rejected compulsory arbitration as a means Comment, grievance.” of the outcomes resolving collective-bargaining dis- The Teamster Joint Grievance Committee Co., putes,” NLRB v. Amax Coal 453 U.S. A Policy: and the NLRB Fail- Deferral 322, 337, 2789, 2798, 101 S.Ct. 69 L.Ed.2d Employee’s to Protect the Individual ure Supreme 672 and the Court Statutory Rights, 133 U.Pa.L.Rev. 1453, repeatedly emphasized obligation that “[n]o way As there is no to ensure (1985). 1457 dispute solely by a labor arises arbitrate employee adequately repre- will be operation v. Gateway law.” Coal Co. properly sented or that the arbitrator will America, 414 United Mine Workers of statute, interpret governing deferring 368, 374, 629, 635, U.S. 94 S.Ct. 38 L.Ed.2d an individual discrimination case arbitra- (1974) (“The compels party to law legal protec- tion denies the only if submit his to arbitration that he receive if his case were would so.”). he has contracted to do by the Board. also heard de novo parties’ While freedom contract Note, to Arbi- The NLRB and Deference Act, allowing not absolute under the tration, (1968). 1191, Yale 1204-08 L.J. agreement compel Board to when the upon never insisted ex parties agree The courts have themselves are unable to legal premise chal haustion of remedies when would violate the fundamental private remedy on which the Act is bar- lenge implicates very itself. based— supervision gaining governmental Advertisers See Association National alone, procedure any without offi- 1151, (D.C.Cir.1979), FTC, 627 F.2d 1156-57 v. compulsion cial the actual terms of over denied, rt. U.S. ce the contract. (1980). L.Ed.2d 1113 In other contexts, 99, 108, we have made it clear that ex 397 U.S. H.K. Porter Co. prudential 821, 826, is a doctrine that haustion 90 S.Ct. applied flexibly forcing and not when to an By

should be Hammontree submit agreed to and never pursuit further of remedies is futile. See arbitration he never (D.C. sought, effectively the court converts its 818 F.2d 890-91 Hayes, Cutler v. Cir.1987). obligations protect his remedies under previous situations where pro- compulsory arbitration, the law into employees first lost at courts dispu- the arbitrators are his cess where on strict have not insisted adherence to a tants. requirement grievance procedures be proceedings exhausted before court concludes that “Board’s Barrentine,

may be initiated. See recognizes policy simultaneously deferment n. at 738 n. 101 S.Ct. at 1443 12. Blind prompt need for resolution ULP requirement insistence on exhaustion claims, importance of individual statu- may only [employee] mean that “the be limitations on Board re- tory rights, the exhausted, comes instead of the remedies.” sources, salutary effects of and the arbitra- tion_” Local NLRB v. Marine Workers Maj.Op. only 1499. If 1717, 1722, approach were so balanced (1968) (“There cannot per- L.Ed.2d 706 enlightened. Deferral to arbitration is processes justification public to make the legitimate the issues fectly when submitted in interpretation until the union member exhausts require wait arbitrator procedures plainly inadequate contract, employee ternal or when the consents complex prob phases deal with all arbitration of his unfair union, However, unfair labor concerning employer, lem and em claim. when an involved, member.”). employee ployee practice against an charge brings the before and the Board defer- Board, ought not allow we hostile or indifferent potentially

ral to employee’s

agent for enforcement Although Board as- rights.

statutory it retains ulti- Mr. Hammontree

sures result to ensure jurisdiction mate Act, the repugnant

reached is it review makes

deferential standard deci- unlikely that an arbitration

extremely thoroughly re- overturned

sion will be extensive

viewed, nothing of the say legislated specifically

delay Act. In-

against in the Landrum-Griffin sys- grievance

deed, Teamsters’ under the employees’ dis-

tem, expediting goal its head. is turned on

crimination claims

Conclusion con- today restructures

The court workers protecting

gressional scheme telling the Na- practices,

from unfair labor Board that

tional Labor Relations individual

entrust system most

employees to a Congressmen Land-

dubious dimensions. Griffin, the oth-

rum, Dirksen and Senator sponsors of the Landrum-Griffin

er that their val- to know be saddened

would Congress came 86th

iant efforts Mr. Hammontree little avail for

so union members.

similarly situated dissident FIRST INVESTMENT

AMERICA CORPORATION, Appellant, and Balboa

Michael GOLAND Co., Inc.,

Construction

Appellees. 89-7253.

No. Appeals,

United States Court Circuit.

District Columbia

Argued Oct. 1990. Feb.

Decided Leitch, George H. whom G.

David D.C., Mernick, III, Washington, was on the appellant. brief, for

Case Details

Case Name: Paul Hammontree v. National Labor Relations Board, Consolidated Freightways Corporation of Delaware, Intervenor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 12, 1991

Citation: 925 F.2d 1486

Docket Number: 89-1137

Court Abbreviation: D.C. Cir.