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

> Court of Appeals for the D.C. Circuit · February 12, 1991 · 925 F.2d 1486

URL: https://www.frixlaw.com/law-library/cases/9481335

## Case

- **Full name:** Paul HAMMONTREE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Consolidated Freightways Corporation of Delaware, Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** February 12, 1991
- **Citations:** 925 F.2d 1486; 288 U.S. App. D.C. 266; 136 L.R.R.M. (BNA) 2478; 1991 U.S. App. LEXIS 1946; 1991 WL 16194
- **Precedential status:** Published
- **Opinion:** Concurrence by Edwards
- **Judges:** Mikva, Mikya, Wald, Edwards, Ginsburg, Silberman, Buckley, Williams, Sentelle, Thomas, Henderson, Randolph
- **Cited by:** 40 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/9481335

## How later opinions describe it (automated extraction)

- stating that even though arbitration award does not preclude subsequent statutory claim, a claim arising under both the National Labor Relations Act and a collective bargaining agreement are not independent; therefore, exhaustion of arbitration remedies is required prior to as…
- stating that even without a “clear and unmistakable” waiver, the Board could still require deferment where parties agree to arbitrate a statutory claim
- discussing Board’s "deferment” policy of requiring parties, under certain circumstances, to exhaust their grievance and arbitration remedies prior to pursuing unfair labor practice charges before the Board
- explaining the difference in enforcement schemes of Title VII and the NLRA

## Opinion text

EDWARDS, Circuit Judge,
concurring.
I do not view the issue posed in this case as raising a difficult question. Indeed, in light of well established legal precedent (including the case law commanding deference to the judgment of the Board on the issue at hand), I think that no serious challenge can be raised to the Board’s policy of deferment with respect to arbitral issues. I write separately, however, to indicate why, in my view, this is not a difficult issue, and also to underscore certain points that I believe to be critical to our disposition of this case.
I.
I agree with the majority that the Supreme Court’s decisions in Alexander, Bar-rentine and McDonald, 1 denying deference or preclusive effect to arbitral awards, do not control the disposition of this case. I reject any suggestion, however, that this conclusion rests on any perceived distinction between the post-arbitral deference question raised in those cases and the pre-arbitral deferment issue which we now address. A close look at Alexander, Barren-tine and McDonald, and their progeny, reveals that the logic driving the Court’s holdings in those cases would also preclude an exhaustion of remedies or deferment requirement for the statutes involved.
The Court in Alexander, Barrentine and McDonald emphasized that Congress, in enacting Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1988) (“Title VII”), the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (1988) (“FLSA”), and section 1 of the Civil Rights Act of 1871, now codified as 42 U.S.C. § 1983 (1988) (“section 1983”), created individual rights and remedies independent of any employee contractual rights and remedies. See, e.g., Alexander, 415 U.S. at 54, 94 S.Ct. at 1022 (an employee filing a lawsuit under Title VII “is asserting a statutory right independent of the arbitration process”); Barrentine, 450 U.S. at 745, 101 S.Ct. at 1447 (“FLSA rights ... are independent of the collective-bargaining process.”) Thus, in Alexander the Court noted that a Title VII plaintiff need not elect between arbi-tral and court fora because the statutory and contractual rights were “distinctly separate” and both rights could “be enforced in their respectively appropriate forums.” 415 U.S. at 50, 94 S.Ct. at 1020. Similarly, in Barrentine, the Court’s conclusion that the FLSA created rights independent of contractual rights was bolstered by the fact that the FLSA contained “[n]o exhaustion requirement.” 450 U.S. at 740, 101 S.Ct. at 1444. 2 The Court’s decisions in *1501 these cases effectively foreclose the possibility of deferment under either Title VII, the FLSA, or section 1983. Further support for this view can be found in International Union of Electrical, Radio & Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229 , 97 S.Ct. 441 , 50 L.Ed.2d 427 (1976). In Robbins & Myers, the Court effectively rejected any notion that an exhaustion of remedies requirement could exist under Title VII by holding that the statutory period for filing a Title VII claim would not be tolled during the pendency of arbitration proceedings. The Court found the argument for tolling “virtually foreclosed” by Alexander, since Alexander had clearly indicated that the contractual and statutory dispute resolution mechanisms were independent of one another. Robbins & Myers, 429 U.S. at 236 , 97 S.Ct. at 446 . Were there an exhaustion of remedies requirement under Title VII, the Court’s holding in Robbins & Myers would have had the drastic effect of rendering many Title VII claims time-barred while still in arbitration, hardly a result which would preserve the independence of the two remedies.
The Court in Robbins & Myers also relied upon Johnson v. Railway Express Agency, Inc., 421 U.S. 454 , 95 S.Ct. 1716 , 44 L.Ed.2d 295 (1975), which held that the filing of a Title VII claim does not toll the limitations period for a claim under 42 U.S.C. § 1981 . Before reaching the tolling question in Johnson , the Court had held that a section 1981 claimant need not exhaust his Title VII remedies. The court stated that it was “disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies,” to express a preference for one by requiring its procedures to be exhausted before the other’s procedures could be invoked. Id. at 461 , 95 S.Ct. at 1720-21 (emphasis added).
Quite plainly, then, the Court has viewed an exhaustion requirement as simply inconsistent with the notion of distinct and independent remedies. I thus view Johnson and Robbins & Myers as having laid to rest any lingering doubts as to whether arbitration proceedings could be a prerequisite to Title VII and other such civil rights court actions. 3
II.
Although it seems clear that there can be no requirement of arbitral deferment under Alexander and its progeny, it is equally clear that the Alexander line of authority is easily distinguishable from the case at hand. The distinction rests on the fundamental differences between the National Labor Relations Act, as amended, 29 U.S.C. §§ 151-69 (1988) (“NLRA”), and the Labor Management Relations Act of 1947, as amended, 29 U.S.C. §§ 141-67 , 171-87 (1988) (“LMRA”), and the statutes at issue in Alexander, Barrentine, McDonald, et al.
Under Title VII, the FLSA and section 1983, Congress emphasized that private dispute resolution mechanisms and statutory claims are separate and independent remedies; under the collective bargaining statutes, however, as manifested in section 203(d) of the LMRA, 29 U.S.C. § 173 (d) (1988), Congress expressed a strong preference for the use of private remedies. And *1502 while rights protected by Title VII, the FLSA and section 1983 are individual in nature, the NLRA and the LMRA are designed to protect both individual and collective rights, and have as their paramount goal the promotion of labor peace through the collective efforts of labor and management. Thus, while courts have the undivided responsibility to adjudicate claims of individual discrimination under Title VII and section 1983, the Board is charged with fostering the overall well-being of labor-management relations, which may be best accomplished by requiring the parties to seek to resolve their disputes through contractual dispute resolution mechanisms.
Most tellingly, in the Alexander line of cases, the Supreme Court has flatly rejected arguments suggesting that statutory rights may be waived by an agreement to arbitrate disputes arising under a collective bargaining agreement. See Alexander, 415 U.S. at 51, 94 S.Ct. at 1021 (“rights conferred [by Title VII] can form no part of the collective-bargaining process since waiver of those rights would defeat the paramount congressional purpose behind Title VII”); Barrentine, 450 U.S. at 740, 101 S.Ct. at 1444-45 (FLSA rights are “nonwaivable” and “cannot be abridged by contract”); McDonald, 466 U.S. at 292 n. 12, 104 S.Ct. at 1804 (relying upon Alexander and Barrentine in rejecting waiver argument with regard to § 1983 rights).
In stark contrast, the Court has explicitly recognized that, because a union represents collective interests, it may waive certain NLRA rights of its members. In Metropolitan Edison Co. v. NLRB, 460 U.S. 693 , 103 S.Ct. 1467 , 75 L.Ed.2d 387 (1983), the Court stated that it had long “recognized that a union may waive a member’s statutorily protected rights.... Such waivers are valid because they rest on the premise of fair representation and presuppose that the selection of the bargaining representative remains free.... Thus a union may bargain away its members’ economic rights, but it may not surrender rights that impair the employees’ choice of their bargaining representative.” Id. at 705-06 , 103 S.Ct. at 1476 (quotation marks omitted). The Court rejected the argument that only collective, as opposed to individual, NLRA rights are subject to union waiver, expressly distinguishing its holding in Alexander that a union cannot waive its employees’ individual Title VII rights. The Court indicated that the possibility of waiver of statutory rights depends upon the “purposes of the statute at issue,” and stated that, unlike Title VII, the NLRA “contemplates that individual rights may be waived by the union so long as the union does not breach its duty of good-faith representation.” Id. at 706-07 n. 11, 103 S.Ct. at 1476 n. 11.
This court as well has acknowledged that a union may properly waive an employee’s individual NLRA rights. In Fournelle v. NLRB, 670 F.2d 331, 335-36 (D.C.Cir.1982), we found that a no-strike provision in a collective bargaining agreement waived an employee’s right to participate in or encourage strike activities. And in American Freight System, Inc. v. NLRB, 722 F.2d 828 (D.C.Cir.1983), we held that where a provision in a collective bargaining agreement relating to the refusal of work assignments differed from an analogous NLRA provision, the parties’ agreement constituted a waiver of the employee’s statutory rights. To have held that the statutory right survived the parties’ contrary contractual agreement, we noted, would have been to embrace
[t]he obvious fallacy ... that there is a statutory issue apart from the contractual issue.... In other words, assuming, arguendo, that an individual employee has a right under the NLRA to refuse to work in order to pursue a contract claim that is not in fact “justified” but only supported by a “good faith” belief in wrongdoing, that alleged right was waived by the collective bargaining agreement in this case.
Id. at 832 .
Likewise, in Local Union No. 2188 v. NLRB, 494 F.2d 1087 (D.C.Cir.), cert. denied, 419 U.S. 835 , 95 S.Ct. 61 , 42 L.Ed.2d 61 (1974), the court recognized that the availability of arbitration may effectively foreclose any access to Board remedies. On this point, the court acknowledged the *1503 strong federal labor policy of encouraging private settlement of grievance disputes and found that “[i]t is well established that the Board may decline to take jurisdiction of a complaint if, in its judgment, Federal labor policy is best served by leaving the parties to voluntary settlements.” Id. at 1090. The court then went on to observe that
[w]e believe that this declaration of policy applies in the pre-arbitral ... context as well as in the post-award context. We also believe that this policy supports pre-arbitral deferral since the grievance and arbitration procedure is the only remedy left to a party from whom the Board withholds statutory relief.
Id.
Consistent with these cases, I believe that, in light of the parties’ agreement prohibiting discrimination and requiring arbitration, Hammontree was properly required by the Board to arbitrate his grievance pursuant to the terms of the collective bargaining contract. The parties to the collective agreement chose to supplant statutory rights with analogous rights created under the contract, and they provided that disputes concerning those rights would be resolved pursuant to an agreed-upon grievance procedure. Giving legal effect to that agreement respects the private ordering of rights and responsibilities established through collective bargaining, and fosters the strong labor policy of promoting industrial peace through arbitration. Consequently, Board deferment in the case is clearly permissible.
Furthermore, even if it might be argued that there was no “clear and unmistakable” waiver of statutory rights in this case, see Metropolitan Edison, 460 U.S. at 708 , 103 S.Ct. at 1477 , the Board could still require deferment. This is so because the Supreme Court has said in other contexts that, even when parties do not forgo substantive rights afforded by statute, they still may be required to adhere to an agreement to arbitrate a statutory claim. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 636-40 , 105 S.Ct. 3346, 3358-61 , 87 L.Ed.2d 444 (1985); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 229-34 , 107 S.Ct. 2332, 2339-42 , 96 L.Ed.2d 185 (1987). In such a situation, the parties simply submit the resolution of their dispute “in an arbitral, rather than a judicial, forum.” Mitsubishi, 473 U.S. at 628 , 105 S.Ct. at 3354 . And, as the Court noted, “[hjaving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Id. Thus, absent a finding of the sort underlying Alexander, i.e., that statutory and contractual rights are “distinctly separate” and that arbitration cannot adequately substitute for adjudication as a means of enforcing statutory rights, deferment is clearly appropriate. 4 If a union has the acknowledged power to “bargain away” its employees’ “statutorily protected rights” under the NLRA, the Board can certainly decline to exercise its jurisdiction when the union takes the lesser step of simply agreeing to have its members’ rights vindicated in an arbitral, rather than Board, forum. Accordingly, Board deferment in this case is hardly problematic. 5
*1504 III.
The majority properly limits its discussion to the deferment question before us today and declines to consider whether the Board could subsequently grant deference to the decision reached by the grievance committee. Our present holding, however, will not hang as a loose strand in labor jurisprudence; rather, it will quickly be woven into the fabric of labor law pursuant to which the NLRB regulates the exercise of its jurisdiction. Thus, I believe it is important to recognize some of the inevitable implications of our decision upon Hammontree’s claim, and the claims of those who follow him.
The rationale behind our holding today, as well as the prior precedent of this court, indicate quite clearly that the Board may accord considerable deference to the decision reached by the grievance committee in the event that Hammontree pursues his contract remedies and then brings his claim once again before the Board. As the majority opinion notes, the Board has articulated a policy to defer to an arbitration or grievance award so long as: (i) the arbitration/grievance proceedings appear to have been fair and regular; (ii) all parties have agreed to be bound by the grievance or arbitration mechanism; (iii) the result is not clearly repugnant to the purposes and policies of the NLRA; and (iv) the arbitrator has adequately considered the unfair labor practice claim. See Olin Corp., 268 N.L.R.B. 573 , 573-74 (1984). 6 Consistent with this policy, the Board retained jurisdiction of Hammontree’s claim for further consideration only upon a showing that either: a) the dispute had not been resolved or submitted to arbitration; or b) the grievance or arbitration procedures had not been fair and regular or had reached a result that is repugnant to the Act.
Since the Board does not grant de novo review to claims which have been considered in arbitration, the Board’s decision to defer a claim to arbitration inevitably diminishes the claimant’s ability to have the Board determine his claim. See NLRB v. Pincus Brothers, Inc.-Maxwell, 620 F.2d 367, 374 (3d Cir.1980) (under Board’s deference policy, “an arbitral award could be sustained which is only arguably correct and which would be decided differently in a trial de novo ”). This is no surprise, however, for we have long been aware of the practical consequences of the Board’s deferment policy.
For example, more than fifteen years ago, in Local Union No. 2188, we heard a case in which the Board had deferred a claim to arbitration, retaining jurisdiction only to the same limited extent as it did in this case. See 494 F.2d at 1089. We recognized that the claimant, upon returning to the Board after exhaustion of his arbi-tral remedies, would not be entitled to de novo review, and that “the results of an arbitration will very likely be dispositive of the unfair labor practice issue.” Id. at 1091. Nonetheless, we upheld the Board’s pre-arbitral deferment policy, noting that section 203(d)’s policy in favor of private dispute resolution of labor conflicts “applies in the pre-arbitral ... context as well as in the post-award context.” Id. at 1090. While conceding that “the fostering of ... [the Board’s pre-arbitral deferment] policy may be detrimental to another policy, viz.: that expressed by the Congress in granting the Board power to remedy unfair labor practices,” id., we found it “well established that the Board may decline to take jurisdiction of a complaint if, in its judgment, Federal labor policy is best served by leaving the parties to voluntary settlements.” Id.
*1505 It is true that in Local Union No. 2188, we noted that a “congruence between the contractual dispute and the overlying unfair labor practice charge” was a factor militating in favor of deferment, and that, without such an interrelationship, “the Board’s abstention might have constituted not deference, but abdication.” 494 F.2d at 1091. However, in this case we have found the requisite congruence between the contractual and statutory claims. The collective bargaining agreement prohibits precisely the type of discrimination Hammon-tree alleges in his statutory claim. As the majority opinion notes, “[t]he fact that the ... [collective-bargaining agreement] parallels the Act does not mean that Hammon-tree’s claim arises only under either the Act or the ... [collective-bargaining agreement] — the claim arises under both.” Hammontree cannot be allowed to nullify his contractual claim simply by pursuing a statutory claim. His allegations of discrimination state a claim under the contract as well as under the NLRA, and Congress has indicated its preference for private resolution of labor disputes. Consequently, the Board may properly defer Hammontree’s claim to arbitration, notwithstanding that the arbitral award “may be dispositive of the unfair labor practice claim.” Local Union No. 2188, 494 F.2d at 1091.
IV.
As I stated at the outset, I believe this is an easy case. In the Steelworkers Trilogy,' 7 the Supreme Court recognized contract grievance procedures as the fora of choice for most claims arising under collective-bargaining agreements. Consistent with this policy, the Court has enforced agreements to arbitrate under section 301 of the LMRA even where it might ultimately be determined that the claim involves a matter within the exclusive jurisdiction of the Board, e.g., where a claim involves representational rights which presumably may not be waived by contractual agreement. Carey v. Westinghouse Elec. Corp., 375 U.S. 261 , 84 S.Ct. 401 , 11 L.Ed.2d 320 (1964). The alleged statutory rights involved in this case are, in contrast, non-representational rights of the sort that Metropolitan Edison suggests are subject to waiver pursuant to collective bargaining. Moreover, there is no doubt that Hammon-tree’s discrimination claim presents a grievance that is cognizable under the collective-bargaining agreement. Thus, the national policy favoring arbitration of labor disputes, a policy embodied in section 203(d) of the LMRA and recognized on numerous occasions by the Supreme Court, is furthered by the Board’s deferment policy, while Hammontree’s right to seek redress for discrimination is preserved through the contractual grievance mechanism. In short, there is no merit to petitioner’s challenge to the Board’s rule requiring claimants to use available contract remedies before seeking redress under the NLRA. I therefore concur in the judgment of the court.
. Alexander v. Gardner-Denver Co., 415 U.S. 36 , 94 S.Ct. 1011 , 39 L.Ed.2d 147 (1974) (involving Title VII of the Civil Rights Act of 1964); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 , 101 S.Ct. 1437 , 67 L.Ed.2d 641 (1981) (involving the Fair Labor Standards Act of 1938); McDonald v. City of West Branch, 466 U.S. 284 , 104 S.Ct. 1799 , 80 L.Ed.2d 302 (1984) (involving 42 U.S.C. § 1983 ).
. In noting that not all labor disputes are suited for binding arbitration in accordance with collective-bargaining processes, the Court in Bar- *1501 rentine cited two cases finding no arbitral exhaustion requirement for asserting certain federal statutory rights. Id. 450 U.S. at 738 n. 12, 101 S.Ct. at 1443 n. 12 (citing United States Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 357 , 91 S.Ct. 409, 412 , 27 L.Ed.2d 456 (1971) (employee need not exhaust contract remedies before (or in lieu of) asserting claim in federal court under statute regulating pay of maritime workers) and McKinney v. Missouri-Kansas-Texas R.R., 357 U.S. 265, 268-270 , 78 S.Ct. 1222, 1224-26 , 2 L.Ed.2d 1305 (1958) (claimant need not pursue grievance and arbitration procedures before bringing federal claim under the Universal Military Training and Service Act).
. Consistent with my understanding of the foregoing cases, lower federal courts have interpreted Alexander to mean that contractual remedies afforded by an applicable collective bargaining agreement need never be exhausted as a prerequisite to proceeding under statutes protecting public law rights. See Gibson v. Local 40, Supercargoes & Checkers, 543 F.2d 1259 , 1266 n. 14 (9th Cir.1976) (relying upon Alexander in finding no exhaustion requirement under Title VII); Waters v. Wisconsin Steel Works, 502 F.2d 1309 , 1316 (7th Cir.1974) (relying in part on Alexander in finding no exhaustion requirement under § 1981), cert. denied, 425 U.S. 997 , 96 S.Ct. 2214 , 48 L.Ed.2d 823 (1976).
. The Fourth Circuit has recently relied on Mitsubishi and McMahon in holding that the Age Discrimination in Employment Act ("ADEA”) does not preclude compulsory arbitration. In Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195 (4th Cir.), cert. granted, — U.S. —, 111 S.Ct. 41 , 112 L.Ed.2d 18 (1990), the court acknowledged that "an arbitration agreement is unenforceable only if Congress has evinced an intention to preclude waiver of the judicial forum for a particular statutory right, or if the agreement was procured by fraud or excessive economic power." Id. at 197. The Court then analyzed the structure and legislative history of the ADEA and concluded that Congress had not expressed any intent to foreclose the parties from choosing to vindicate their rights through arbitration.
. Although the Mitsubishi/McMahon rationale and contractual waiver theory lead to the same result in this case, i.e., affirmance of the Board’s decision to defer, the two approaches are analytically distinct. Under waiver theory, the contractual rights supplant the statutory rights, and thus the arbitrator’s sole responsibility is to enforce the rights created by the contract. Under Mitsubishi and McMahon , statutory rights are still being enforced, only in an arbitral, *1504 rather than court, forum. As I indicate above, I believe that contractual waiver theory is the correct approach in this case, as it respects the freedom of the parties to replace waivable NLRA rights with rights negotiated through collective bargaining.
. While this court has never directly ruled on the propriety of the Board’s current Olin standard, see Darr, 801 F.2d 1404, 1409 (D.C.Cir.1986) (remanding to Board for further explanation of Olin standard), it has affirmed various Board doctrines according considerable deference to arbitral awards. See, e.g., Bakery, Confectionery and Tobacco Workers v. NLRB, 730 F.2d 812, 814-16 (D.C.Cir.1984); American Freight System, 722 F.2d at 831-34 ; Bloom v. NLRB, 603 F.2d 1015, 1018-21 (D.C.Cir.1979).
. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 (1960).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481335. Public record. Not legal advice.