# Paul Hammontree v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · March 30, 1990 · 894 F.2d 438 URL: https://www.frixlaw.com/law-library/cases/9479913 ## Case - **Full name:** Paul HAMMONTREE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 30, 1990 - **Citations:** 894 F.2d 438; 282 U.S. App. D.C. 279 - **Precedential status:** Published - **Opinion:** Dissent by Wald - **Judges:** Gesell, Mikva, Wald - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479913 ## Opinion text WALD, Chief Judge, dissenting: One simple but determinative point compels me to dissent from the panel opinion. My disagreement is over the meaning of the sentence in § 10(a) which provides that “[t]his power [to prevent unfair labor practices] shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise.” The majority relies on this sentence as a clear and unambiguous signal from Congress that the National Labor Relations Board (“NLRB” or “Board”) is precluded from requiring ex *448 haustion of contract remedies in unfair labor practice claims that do not involve issues of contract interpretation but rather concern language in the contract parallel to guarantees of the National Labor Relations Act (“NLRA” or “Act”) itself. Thus, it says that Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), compels us to reverse the Board’s deferral to arbitration of Hammontree’s claim even though for decades the Board, with court approval, has insisted that mixed contract-interpretation/unfair labor practice questions go first to arbitration. 1 I find, however, that as a prohibition on the Board’s power to require exhaustion of contract remedies, § 10(a) is far less clear than the panel suggests. Consequently, I conclude that Chevron compels deference to the Board’s interpretation of § 10(a), which does not strike me as unreasonable. Chevron, 467 U.S. at 843 , 104 S.Ct. at 2782 (“[I]f the statute is ... ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”). After all, the parties to the contract here have voluntarily agreed upon the inclusion of an anti-discrimination provision and have specified arbitration as the initial remedy for its violation; why should that bargain be abrogated because the same guarantee appears in the Act? Admittedly, if § 10(a) is read literally and in isolation, it does permit of the majority’s interpretation. Since the Board’s power to prevent unfair labor practices (“ULPs”) “shall not be affected by any other means” (emphasis added), even the Board itself might appear to be precluded from establishing such means. But if this interpretation were correct, how would one explain the Board’s consistent, court-approved policy requiring pre-arbitration deferral of ULP cases involving issues of contract interpretation? The answer, I think, is that § 10(a) is basically an affirmative grant of authority to the Board. Thus, the more natural reading of the language is that no one other than the Board “shall affect,” i.e., shall dimmish, the Board’s authority over ULP claims. Indeed, a memorandum discussing § 10(a) of S.1958, the Senate bill that later became the NLRA, explains that the wording in question is “essential to clarify the paramount position of the Board under the Act” so as “to make it clear that although other agencies may be established by code, agreement or law to handle labor disputes, such other agencies can never divest the National Labor Relations Board of jurisdiction which it would otherwise have.” Staff of Senate Comm. on Education and Labor, 74th Cong., 1st Sess., Memorandum Comparing S. 2926 and S.1958 (Comm. Print 1935) in 1 Legislative History of the National Labor Relations Act of 1935, 1357, 1323. In any case, while reasonable persons may differ as to the meaning of the sentence in issue, such reasonable differences are enough to require deference to the Board’s construction of the section. 2 Because I hold this view, I find it of little moment that the Board’s interpretation here, which follows its earlier decision in United Technologies, supra, extends the Collyer pre-arbitration deferral doctrine to cases in which resolution of ULPs do not hinge on contractual interpretation. So long as application of a contractual provision to a grievant’s case particularly and adequately addresses the situation giving rise to the ULP claim and the Board retains appellate jurisdiction, the Board has satis *449 fied its statutory obligation as the “Supreme Court of Labor.” 1 Legislative History 1357. Finally, I do not believe the Supreme Court cases cited by the majority are controlling. As the majority notes, none of them arose under the NLRA. And the language from Alexander v. Gardner-Denver Co., 415 U.S. 36, 50 , 94 S.Ct. 1011, 1020 , 39 L.Ed.2d 147 (1974), cited by the majority at 444, does not say that the Board and the Board only can hear ULP claims in the first instance. Rather, it merely indicates that where an arbitral panel decides a contract grievance that parallels a ULP claim, the Board may subsequently hear the ULP claim de novo. For the forgoing reasons, I would affirm the Board’s order. ORDER The Suggestions For Rehearing en banc of respondent and intervenor have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service voted in favor of the suggestions. Upon consideration of the foregoing it is Ordered, by the Court en banc, that this case will be considered and decided by the Court sitting en banc. . See, e.g., Carey v. Westinghouse, 375 U.S. 261 , 84 S.Ct. 401 , 11 L.Ed.2d 320 (1963) (whether the dispute to be considered is one involving work assignment or one concerning representation, it is not within the exclusive jurisdiction of the Board, and there is no barrier to use of the arbitration procedure); Local Union No. 2188, IBEW v. NLRB, 494 F.2d 1087 (D.C.Cir.1974); Associated Press v. NLRB, 492 F.2d 662 (D.C.Cir.1974); United Technologies Corp., 268 N.L.R.B. 557 (1984); Collyer Insulate Wire, 192 N.L.R.B. 837 (1971). . The majority’s invocation of two earlier bills containing arbitration provisions does not convince me otherwise. While it is true that these provisions were eliminated from the final bill, no persuasive materials from the Act's legislative history explain why; the two sentences from the Senate hearing cited by the majority (supra at 445) do not constitute the considered opinion of Congress. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479913. Public record. Not legal advice.