# 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/9481337 ## 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:** Dissent by Mikva - **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/9481337 ## 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 MIKVA, Chief Judge, dissenting: Paul Hammontree works as a truck driver for Consolidated Freightways. The Teamsters Union is the bargaining representative for Consolidated’s employees. Hammontree is a dissident member of the union, having disagreed with Teamster officials on numerous occasions. The Teamsters had an understanding with Consolidated whereby the union promised not to press any employee grievances based on certain seniority rights if Consolidated would post departure times for available trucking assignments called peddle runs. Hammontree nevertheless filed a grievance *1506 based on his seniority rights and won, but Consolidated then discontinued its practice of posting times and, after Hammontree unsuccessfully challenged that action at a second grievance proceeding, the company retaliated by assigning him several undesirable runs. The court today tells Mr. Hammontree that he must take his complaints for alleged violations of his rights under the national labor laws to a grievance committee composed of members half from the union’s hierarchy and half from the employer. (It is as if a new kid at school was told to try and work things out with the two bullies who beat him up rather than have the principal intervene and discipline the ruffians.) Inexplicably, the court repeatedly suggests that the “parties” consented to such arbitration in this case, when in fact the “party” most concerned with and affected by the unlawful discrimination against him never consented to such arbitration and instead expressly chose to pursue a complaint arising solely under the National Labor Relations Act. While there may have been a time when Congress blithely equated the interests of employees and their unions, subsequent experience with union corruption and the ensuing' passage of the Landrum-Griffin Act have erased any such simple dichotomy between “labor” and “management.” As Senator Dirksen observed, when introducing the labor reform legislation in the 86th Congress that would culminate in passage of the Landrum-Griffin Act, [r]ecent developments in some areas of labor-management relations have been very disturbing. Some union officials have forgotten that the purpose for their existence is to represent employees in collective bargaining. Some unions and employers have been careless of their obligations not to use the tool of collective bargaining to promote the interests of management and unions, as such. They have disregarded the rights and interests of the individual worker. 105 Cong.Rec. 1174 (1959). The court writes today as if all labor disputes concern only unions and employers — as if Land-rum-Griffin had no purpose or effect. The court reaches its result by finding equivocal some plain language of the statute, reading the legislative history in a most selective manner, and altogether ignoring the clear directive from subsequent Congresses to pay special and prompt attention to the rights of the individual employees. Brushing aside cogent explanations for the statute’s enumerated procedures, the court gives deference to the National Labor Relation Board’s clear abdication of its statutory obligations. Mr. Hammontree is consigned to a never-never land of partisan proceedings where his rights under the law may never be adjudicated before the Board. If he works long enough, and is persistent enough, the Board might someday review (without the benefit of any explanation or record) a decision of the grievance committee. The sponsors and champions of the Landrum-Griffin Act would be dismayed to see such short shrift made of their efforts to build statutory protections against this very kind of abuse. I think my colleagues are wrong. Discussion This case involves the intersection of two congressional policies: preventing unfair labor practices and fostering the collective bargaining process. Because the collective bargaining agreement between the Teamsters Union and Consolidated contains two provisions forbidding unlawful company discrimination against employees for exercising union rights, the court holds that deferring Hammontree’s discrimination charges to arbitration was proper. However, since Hammontree did not pursue his claims under, the non-discrimination clauses in the contract, and never consented to arbitration of his statutory claims, this is a straightforward example of the Board abdicating its responsibility to protect rank-and-file workers from their own unions as well as their employers. *1507 A. Congressional Enactments 1. The Wagner Act. There can be no dispute that the Wagner Act gave the Board exclusive power to prevent unfair labor practices. Section 10(a) of the Act, 29 U.S.C. § 160 (a) (1988), provides in pertinent part: The Board is empowered to prevent ... any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce. This power 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 court contends that the section merely “empowers” the Board and in no way constrains its discretion to defer disputes to private arbitration. If this is correct, it is hard to understand why the proviso in the second sentence was even necessary. In fact, a review of the Act’s legislative history demonstrates an alternative motivation, namely a clear directive not to let private parties interfere with the Board’s congres-sionally mandated function. Furthermore, contrary to the majority’s suggestion, the legislative history of the Act and its subsequent amendments confirms that there is no generalized preference for arbitration that would trump an individual employee’s right under § 10(a) to have the Board consider his discrimination charges. In debating the Wagner Act, Congress considered but failed to pass several bills containing the very same deferral authority that the court today discovers. The original version of the bill, introduced by Senator Wagner in 1935, would have allowed the Board to “defer its exercise of jurisdiction over any such unfair labor practice in any case where there is another means of prevention provided for by agreement, code, law, or otherwise, which has not been utilized.” S. 1958, § 10(b), original Senate print, 74th Cong., 1st Sess. (1935), reprinted in NLRB, Legislative History of the National Labor Relations Act (1949), at 1301 (hereinafter “History of the Wagner Act”). The early version of the Senate bill also contained a general arbitration provision that would have let the Board directly arbitrate labor disputes or appoint “any person, agent, or agency to act as arbitrator.” Id., § 12, reprinted in History of the Wagner Act, at 1305-07. These proposals were vigorously opposed by various labor groups and spokesmen. Several witnesses expressed fears that the Wagner Act would usher in a system of “compulsory arbitration.” See Hearing on S. 2926 Before the Senate Comm. on Edu. and Labor, 73rd Cong., 2d Sess. 488 (1934) (hereinafter “Hrgs. on S. 2926”) (statement of George H. Powers on behalf of the Steelworkers of Bethleham Steel Corp.), reprinted in History of the Wagner Act, at 522; Hearings on S. 1958 Before the Senate Comm, on Edu. and Labor, 74th Cong., 1st Sess. 811-15 (1935) (hereinafter “Hrgs. on S. 1958 ”) (speech of Louis Wein-stock, National Secretary of the AFL’s Committee for Unemployment Insurance and Relief), reprinted in History of the Wagner Act, at 2197-2201. These commentators conveyed a clear distrust of arbitration. Noting that “workers have been betrayed” in the past, Mr. Powers argued that “[a]ny compulsory system of arbitration would automatically be in favor of the company.” Hrgs. on S. 2926, at 488. Mr. Weinstock was even more strident in condemning the arbitration provisions: All of the boards’ actions have been characterized by long delays designed to demoralize and destroy the fighting strength and spirit of the workers.... We maintain that the arbitration measures inherent in this bill are aimed at forcing Government control over the rights of the workers to defeat their interests. Hrgs. on S. 1958, at 813-14. See also Hrgs. on S. 1958, at 716-17 (statement of William H. Davis of the Twentieth Century Fund, Inc.), reprinted in History of the Wagner Act, at 2102-03. In hearings on a predecessor bill introduced the year before, E.P. Cush, the National President of the Steel and Metal Workers Industrial Union, summarized the employees’ concern that deferral would permit collusion by companies and unions *1508 to deprive the workers of their fundamental protections against unfair practices: [Senator Wagner] says, “We will amend the bill so that the board shall arbitrate only when both sides agree to submit to arbitration.” What will this mean to the rank and file and the majority of the American working class? Who are the “both sides” to be recognized by this bill? ... [Every decision will swing] against the worker. The history of arbitration boards has recorded many bitter instances and experiences which prove this contention conclusively.... [Union] bureaucrats are always ready to submit to arbitration. It has been their slavish policy for years. Hrgs. on S. 2926, at 492, reprinted in History of the Wagner Act, at 526. While the rhetoric is strong, Mr. Cush could have been talking about Paul Hammontree’s complaint here. After this strong opposition was voiced, the Senate Committee deleted the deferral and arbitration language from the version of the bill that subsequently became the Wagner Act. See S. 1958, second Senate print, reprinted in History of the Wagner Act, at 2291, 2295-97; 79 Cong.Reo. 7651-52, reprinted in History of the Wagner Act, at 2351, 2354-55. “The committee does not believe that the Board should serve as an arbitration agency. Such work, like conciliation, might impair its standing as an interpreter of the law.” S.Rep. No. 573, 74th Cong., 2d Sess. 8 (1935), reprinted in History of the Wagner Act, at 2307. The various versions of the bills pending before the House of Representatives also indicate that the sections providing for deferral and arbitration were considered and later deleted. Compare H.R. 6288, 74th Cong., 1st Sess., reprinted in History of the Wagner Act, at 2464, 2468-70,- with H.R. 7978, 74th Cong., 1st Sess., reprinted in History of the Wagner Act, at 2863, 2867. The court points to the fact that the Senate Committee Report never explicitly disclosed the reasons for the changes. But the result had clear antecedents: Congress made a conscious decision not to adopt language that would broadly allow deferral of claims to arbitration, in response to the concerns expressed by witnesses about the risk of collusion between unions and employers. Instead, Congress opted for the empowering language of § 10(a). Contrary to the court’s emphasis on a passage suggesting that the specific arbitration language was deleted only because of a perceived redundancy, see Maj.Op. at 1492, the fact remains that the precise deferral authority the Board now seeks was spelled out in the House and Senate bills but subsequently deleted without any suggestion in the Senate Committee Report that the final language of § 10(a) already gave the Board that authority. The Court restores the very procedure that Congress deleted. The court suggests that § 10(a) places no limits on the Board’s authority to delegate or defer enforcement. If this is true, then several specific delegation or deferral provisions (:i.e., §§ 3(b), 10(a)-(c), (k), & 14(c)(1) of the Act) are superfluous since they would presumably be available under the sweeping deferral authority that the court discovers in § 10(a). The rewrite of the statutory scheme is glaring. Even the Board’s explanation for why Congress settled for the language in § 10(a), namely as a reaction to the excessive power then vested in quasi-private industrial boards, underscores the hazard of deferring to “bipartisan” committees that operate “in an atmosphere of conciliation and compromise that may be admirably suited to the settlement of wage and hour disputes” but are ill-suited to ensuring that all employees were protected against discrimination. See S.Rep. No. 573, at 4-5 (the Act must be “enforced ... rather than broken by compromise; and its enforcement must reside with governmental rather than quasi-private agencies”), reprinted in History of the Wagner Act, at 2304. As explained below, the Teamster Joint Grievance Committees operate in an identical, and equally objectionable, fashion. Even Senator Wagner recognized that “[t]he practical effect of letting each industry bargain and haggle about what section 7(a) means is that the weakest groups who need its basic protection most receive the least.” *1509 Hrgs. on S. 1958, at 50-51, reprinted in History of the Wagner Act, at 1426-27. It is clear, then, that even before the Landrum-Griffin Act was passed in 1959, the substantive sections of the Wagner Act already demonstrated the centrality of safeguarding workers from unfair labor practices such as discrimination. Congress consistently expressed its desire to protect the individual worker against discrimination by his employer or his union. This was highlighted by the extensive congressional debates concerning the perils of the so-called “company-dominated union” that fails to protect the rights of workers. See 79 Cong.Rec. 7570 (1935) (remarks of Sen. Wagner), reprinted in History of the Wagner Act, at 2333-34. While the majority-rule provision of the Wagner Act was designed to ensure that the union with the greatest employee support would be the exclusive bargaining representative for all employees, Congress maintained that the non-discrimination provisions of the Act would protect individual employees even without their union’s help. See S.Rep. No. 573, at 13, reprinted in History of the Wagner Act, at 2312-13. As Senator Wagner stated during floor debates, “the prohibition of certain unfair labor practices ... [is] intended to make the worker a free man.” 79 Cong.Rec. 7574 (1935), reprinted in History of the Wagner Act, at 2343. 2. The Taft-Hartley Act. The preference for arbitration of disputes involving the application or interpretation of a collective bargaining agreement was added by § 203(d) of the Labor-Management Relations (“Taft-Hartley”) Act in 1947. After initially charging the Board with preventing unfair labor practices through the Wagner Act, Congress subsequently carved out a limited preference for allowing parties to a collective bargaining agreement to resolve any disputes over that agreement in a manner agreed upon by them. Accordingly, section 203(d) of the Act, 29 U.S.C. § 173 (d), provides in pertinent part: Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement. The majority contends that § 10(a) is ambiguous in light of this competing congressional directive to promote collective bargaining. Indeed, one of the concurring judges finds this an easy case because the “parties to the collective agreement chose to supplant statutory rights with analogous rights created under the contract....” But this case does not require any application or interpretation of the collective bargaining agreement, and Hammontree never agreed to give up his statutory protections against discrimination by the very parties to the collective bargaining agreement. There is nothing that would dilute the unambiguous command of § 10(a). In fact, § 203(d) is not the generalized preference for private dispute resolution that the court suggests. The version of the Taft-Hartley Act that passed the House would have deleted the sentence of § 10(a) that limits the Board’s ability to defer, but the Conference Committee retained the sentence in order to prevent private rights of action from supplanting existing remedies. See H.Rep. No. 510, 80th Cong., 1st Sess. 52 (1947), reprinted in NLRB, Legislative History of the Labor Management Relations Act (1948), at 556. The potential for tension between these two policies has prompted numerous challenges to the Board’s administration of the Act. See, e.g., NLRB v. Strong, 393 U.S. 357, 360 , 89 S.Ct. 541, 544 , 21 L.Ed.2d 546 (1969) (“[I]t has been made clear that in some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither preempting the other.”); Darr v. NLRB, 801 F.2d 1404, 1409 (D.C.Cir.1986) (expressing doubts about Board deferral of statutory unfair labor practice claims in light of the tension between § 203(d) and § 10(a)). The Supreme Court just recently reemphasized, however, the narrow scope of § 203(d)'s preference for private dispute resolution. In Groves v. Ring Screw Works, — U.S. —, 111 S.Ct. 498 , 112 L.Ed.2d 508 (1990), the Court held that the preference ex *1510 pressed in § 203(d) does not apply to contract provisions reserving non-peaceful methods of dispute resolution such as strikes. The majority suggests that, since Ham-montree’s statutory claims could also have been brought under the parallel non-discrimination clauses in the collective bargaining agreement, these statutory claims necessarily involve the application or interpretation of the contract so as to trigger § 203(d)’s preference for arbitration. See Maj.Op. at 1493-1494. This argument is disingenuous. To borrow the abstention analogy used by the court to describe pre-arbitral deferral, Maj.Op. at 1490, the majority cannot mean to suggest that a federal court must abstain whenever a plaintiff could have invoked (but did not) parallel rights under state law. In holding that the Taft-Hartley Act only preempted state law if it required interpretation of a collective bargaining agreement, the Court recently noted that “there is nothing novel about recognizing that substantive rights in the labor relations context can exist without interpreting collective-bargaining agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411 , 108 S.Ct. 1877, 1884 , 100 L.Ed.2d 410 (1988). The preference for arbitration is simply not involved in a case where the employee has not voluntarily submitted his discrimination claim to arbitration. The court’s reasoning may well encourage the routine inclusion of contract provisions that merely incorporate the National Labor Relations Act by reference. If this does not wipe out the statutory rights guaranteed to rank- and-file workers, it certainly assures that their vindication will be substantially diminished and unnecessarily delayed. Ham-montree has not “nullified” his rights under the collective bargaining agreement; he has consciously decided not to invoke them. The court’s fear that unions might circumvent arbitration provisions by filing charges through individual employees, see Maj.Op. at 1494 n. 15, is unfounded (since the Board can police for good faith) and clearly not the situation here. 3. The Landrum-Griffin Act. Perhaps nowhere is congressional concern for the well-being of the individual employee vis-a-vis the powerful union more manifest than in the Landrum-Griffin Act (the Labor-Management Reporting and Disclosure Act of 1959). The Act was passed at a time when union corruption was perceived to be widespread and individual employees were powerless to prevent abusive union tactics. In response, title I of Landrum-Griffin created a bill of rights for union members guaranteeing equal rights for all employees, including freedom of speech and the right to sue. See 29 U.S.C. § 411 (1988). It is clear from the legislative history of Landrum-Griffin that Congress no longer was willing to assume that the rights of individual employees would be adequately protected by the unions. Neither unions nor employers could be trusted to safeguard the interests of all their employees. In some few cases men who have risen to positions of power and responsibility within unions have abused their power and neglected their responsibilities.... The hearings of the McClellan committee have [also] shown that employers have often cooperated with and even aided crooks and racketeers in the labor movement at the expense of their own employees. S.Rep. No. 187, 86th Cong., 1st Sess. 6 (1959), reprinted in NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act (1959), at 402 (hereinafter “History of Landrum-Grif-fin”). Recounting the same concerns, the House Committee Report concluded that “it is essential that union practices and procedures be democratic and that they recognize and protect the basic rights of the union members and the employees represented by unions.” H.Rep. No. 741, 86th Cong., 1st Sess. 7 (1959), reprinted in History of Landrum-Griffin, at 765. Speaking in support of Landrum-Griffin, Congressman Bosch noted that most cases of discrimination brought before the Board are filed by individual employees, not unions. Many of such cases involved “so- *1511 called sweetheart agreements between union leaders and employers and similar activities in which workers are denied their rights.” 105 Cong.Rec. 1430 (1959) (remarks of Rep. Bosch), reprinted in History of Landrum-Griffin, at 1616. As Congressman Bosch recognized, without government protection, an individual employee is powerless against his employer and union bosses. Thus, the Board’s current policy of deferring individual unfair labor practice claims to grievance committees composed of company and union representatives interdicts its primary statutory responsibility to protect the rights of individual employees. In addition to codifying the rights of union members and regulating the internal affairs of unions in order to stamp out racketeering and corruption, Landrum-Griffin also added § 10(m) to the National Labor Relations Act, providing that the Board should give discriminatory unfair labor practice claims arising under § 8(a)(3) priority over all other cases except secondary boycotts. See 29 U.S.C. § 160 (m). According to Senator Mundt, who introduced this amendment, § 10(m) was intended to redress the problem of the individual employee who loses his job or wages as a result of discriminatory behavior; he explained that the Board often delays hearing such cases: “At present, a vast majority of these cases are left hanging on the vine for a period, sometimes amounting to years.” 105 Cong.ReC. 6044 (1959) (remarks of Sen. Mundt), reprinted in History of Landrum-Griffin, at 1253. By introducing this measure, Senator Mundt sought to extend to ■the individual the same priority treatment that the Board accorded companies faced with secondary boycotts. See id. The committee bill contains a provision which would ... require the National Labor Relations Board to give priority to cases involving discrimination_ Inasmuch as such discrimination cases often involve an employee’s loss of his job, and consequently the livelihood of himself and his dependents, the committee believes such cases warrant priority treatment. H.Rep. No. 741, 86th Cong., 1st Sess. 27 (1959), reprinted in History of Landrum-Griffin, at 785. The Board’s current policy of deferring individual discrimination cases to arbitration squarely conflicts with this congressional command that such cases be given priority treatment by the Board. The court speculates that, by deferring as many § 8(a)(3) claims as possible, the Board is better able to expedite such claims in the aggregate. See Maj.Op. 1494-1496. I do not doubt that sweeping deferral of unfair labor practice claims will clear the Board’s docket more expeditiously, just as I am sure the courts could do some docket clearing by deferring anytime the defendant wanted to go to an arbitrator of his or her choosing. But administrative efficiency was certainly not the goal expressed by Congress in § 10(m). Hammontree has an individual right to priority treatment by the Board that cannot be sacrificed just so the discrimination claims brought by others can be processed more easily. In fact, both the court today and the Board concede that deferral “delays” the consideration of an individual’s statutory claim. See Maj.Op. at 1497. Section 10(m) does not permit such delay. Congress told the Board that discrimination claims should be “given priority,” and the majority is wrong to read this as a vague delegation. It is in no sense an exercise of agency expertise to hope that as many claims as possible will simply go away without any effort by the Board. The circumstances of this delay, to an individual at odds with both his union and his employer, is particularly egregious. B. Statutory Interpretation and Agency Practice The court has to overcome all of the plain language and legislative history hurdles described above to even reach the question of whether the Board’s interpretation of the statute was reasonable and entitled to deference. In evaluating the Board’s construction of these provisions, the court acknowledges that it is guided by the principles articulated in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 , 104 S.Ct. 2778, 2781-82 , 81 L.Ed.2d 694 (1984). Under Chevron, we must first look *1512 to the plain meaning of the Act. The majority is so preoccupied with the ambiguity it perceives in § 10(a) standing alone that it fails to adequately address the interplay of other provisions in the Act. “[I]n expounding a statute, we are not guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” Dole v. United Steelworkers of America, — U.S. —, 110 S.Ct. 929, 934 , 108 L.Ed.2d 23 (1990) (internal quotes omitted); Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1368 (D.C.Cir.1990). When the language of § 10(a) is viewed in tandem with legislative intent and with other parts of the Act (especially in light of the Landrum-Griffin amendments), the statutory question can be settled under step one of Chevron rather than shunted into the lazy deference of step two. I believe that the Board violated Congress’ clear intent when it deferred Hammontree’s statutory claims. Even if we must proceed to step two, however, the court errs in ignoring Chevron’s requirement that a court gauge the reasonableness of an agency’s interpretation by looking at the statute as a whole. There are cases where the tension created by the twin policies expressed in the Act can best be resolved by deferring to a grievance proceeding. This court has allowed the Board to defer unfair labor practice claims that require contract interpretation. See Associated Press v. NLRB, 492 F.2d 662 (D.C.Cir.1974); Local Union No. 2188, IBEW v. NLRB, 494 F.2d 1087 (D.C.Cir.), ce rt. denied, 419 U.S. 835 , 95 S.Ct. 61 , 42 L.Ed.2d 61 (1974). Likewise, other circuits have permitted the Board to defer where the employee has requested arbitration on the very issue before it, and the employee has not withdrawn that request. See Lewis v. NLRB, 800 F.2d 818 (8th Cir.1986). But until this case, no court has ever sanctioned deferral where the employee did not request arbitration and no portion of the claims rested upon a contractual matter. The Board’s own preference for arbitration cannot implicate § 203(d)’s policy that encourages adjustment through procedures contained in collective bargaining agreements. We have never before allowed the Board to defer individual, non-contractual unfair labor practice claims to arbitration. The lead case establishing the Board’s pre-arbitration deferral doctrine is Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). In Collyer, the Board held that if the legal question of whether the employer has committed an unfair labor practice also determines whether the employer has violated the collective bargaining agreement, then it would send the case to arbitration and defer to the arbitrator’s decision. The Board noted that allowing the union to bring such a claim before it would violate the union’s commitment to arbitrate contractual disputes. See 192 N.L.R.B. at 842. The unfair labor practice issue was whether the company violated § 8(a)(5) of the Act by unilaterally altering the terms and conditions of employment when it changed the pay rates for certain job classifications. The Board recognized that adjudicating this statutory claim essentially required an interpretation and application of the terms of the collective bargaining agreement, a task within the special expertise of an arbitrator. We expressly approved an application of the Collyer deferral rule in two cases where resolution of the unfair labor practice claim required interpretation of the collective bargaining agreement. See Associated Press, 492 F.2d at 666 (employer claimed that union’s demand for dues collected pursuant to authorized “checkoffs” constituted an unfair labor practice); Local Union No. 2188, 494 F.2d at 1090-91 (union claimed that employer had unilaterally changed the promotion status of certain employees). In Local Union No. 2188, the court was careful to add, however, that if the “congruence between the contractual dispute and the overlying unfair labor charge ... were not present, the Board’s abstention might have constituted not deference, but abdication.” 494 F.2d at 1091. Abdication is precisely what the court condones in this case. The Board announced an extension of the Collyer doctrine, after a series of shifts, in United Technologies Corp., 268 N.L.R.B. *1513 557 (1984). In United Technologies, the Board deferred to arbitration even though the unfair labor practice charge filed by the union was for unlawful coercion under § 8(a)(1) of the National Labor Relations Act and did not necessarily implicate any construction of the collective bargaining agreement. Deferral of such claims cannot be squared with the Board’s mandatory obligation to remedy unfair labor practices, and I believe that United Technologies extended the Collyer principle beyond what this court had made clear in Local Union No. 2188: Congress did not intend to allow the Board to abstain in cases not involving any interpretation or application of a collective bargaining agreement. It should be pointed out that, in any event, the union in United Technologies had contractually agreed to an arbitration procedure. Only one other court has considered the United Technologies doctrine, and its decision to affirm deferral in that case rested on the fact that “all parties had agreed to be bound.” See Lewis v. NLRB, 800 F.2d 818, 821 (8th Cir.1986). In the Lewis case, the union had, with the employee’s knowledge and consent, commenced the arbitration-grievance process prior to the filing of any unfair labor practice claim, and the demand for arbitration had not been withdrawn. The Eighth Circuit merely recognized that an employee may choose to raise a statutory claim in arbitration before proceeding to the Board, and may be bound by that choice. That choice belongs to the employee, not the union or the Board, and nothing in Lewis would authorize deferral under United Technologies when the employee has not consented to arbitration. See also Wertheimer Stores Corp., 107 N.L.R.B. 1434 , 1435 (1954) (refusing to recognize an arbitration award because the discharged employee had, from the outset, announced his desire to secure a hearing by the Board). The Administrative Law Judge in this case appreciated the difference as well: “an individual, as opposed to a labor organization, should not have to resort to the contractual grievance machinery for possible resolution of issues raised in an unfair labor practice charge.” Hammontree, 288 N.L.R.B. at 1267. In this case, Hammontree did not agree to arbitration of his discrimination claims and those claims are wholly separate from any questions of contract interpretation. The union merely created an additional procedure whereby it could arbitrate statutory claims. Absent a conscious waiver by the employee of those statutory rights or a decision to effectuate those rights under the parallel non-discrimination provisions of the collective bargaining agreement, Board deferral was inappropriate. Moreover, even at this late date, it is not clear that the Board has adopted and applied a consistent pre-arbitration deferral rule in cases’ such as Hammontree’s. In Cone Mills Corp., 298 N.L.R.B. No. 70, 134 L.R.R.M. 1105 , 1109 n. 13 (1990), the Board reached the merits after this court remanded the initial deferral order in Darr. In Hilton Hotels Corp., 287 N.L.R.B. 562 , 563 (1987), where the unfair labor practice charge was brought upon the conclusion of arbitration on a related contract issue, the Board reached the merits after its initial deferral order was remanded in Harberson v. NLRB, 810 F.2d 977, 983-84 (10th Cir.1987). In NLRB v. U.S. Postal Service, 906 F.2d 482, 488-90 (10th Cir.1990), the Tenth Circuit held that the Board did not abuse its discretion in declining to defer an unfair labor practice claim to arbitration. In an accompanying footnote, the court recounted the unfortunate history of the Board’s pre-arbitration deferral policy, noting that it “has explicitly and dramatically changed its policy twice in the past thirteen years.” Id. at n. 7. Even after the Board decided this case, it premised a decision not to defer in another case on the same distinction between contractual and statutory interpretation involved here: In Collyer ..., the Board found that the case was “eminently well suited to resolution by arbitration” because “[t]he contract and its meaning” were “at the center of [the] dispute.” That is not the situation here, where the meaning of the contract does not constitute any part of the instant dispute.... [T]he defenses the Respondent raises to the unfair labor *1514 practice allegations primarily revolve around the Act and its policies.... “The questions presented are therefore not ones of contract interpretation.... They are legal questions concerning the [Act] which are within the special competence of the Board rather than of an arbitrator.” American Commercial Lines, 296 N.L.R.B. No. 87, 133 L.R.R.M. 1100 , 1102 n. 8 (1989) (citation omitted). The Board tries to distinguish this case by pointing out that it did not involve a parallel non-discrimination provision in the collective bargaining agreement but rather concerned interpretation of an informal settlement agreement. Even so, the Board’s own explanation in American Commercial Lines (and recent practice of not deferring in such cases) would appear to buttress the distinction already evident in the statutory scheme. Even if this case were otherwise appropriate for such deferral, a reviewing court should accord the Board’s vacillating interpretations of the Act no particular deference. See Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492 , 67 S.Ct. 789, 793 , 91 L.Ed. 1040 (1947) (“If we are obliged to depend upon administrative interpretation for light in finding the meaning of the statute, the inconsistency of the Board’s decisions would leave us in the dark.”). Although the court should be commended for trying to bring coherence to the Board’s sometimes chaotic deferral practice (arguably a task that should be left to the Board on remand), the majority’s resolution of the controversy in this case is at odds with the statutory scheme crafted by Congress over the years. While deferral may be warranted when an unfair labor practice claim requires the interpretation or application of the collective bargaining agreement, Congress did not contemplate such deferral when an individual employee brings a claim under the National Labor Relations Act that has nothing at all to do with the collective bargaining agreement. C. The Waiver Doctrine No one disputes the fact that Hammon-tree’s unfair labor practice charges properly arise under the substantive prohibitions contained in sections 7 and 8(a) of the Act, 29 U.S.C. §§ 157 , 158(a)(1) & (3), although counsel for the Board now suggests that the inclusion of parallel non-discrimination provisions in the parties’ collective bargaining agreement may have waived Hammon-tree’s statutory right to be free from discrimination for engaging in protected activity. A waiver of an employee’s statutory rights may not be found unless it is “established clearly and unmistakably.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708-09 , 103 S.Ct. 1467, 1477-78 , 75 L.Ed.2d 387 (1983) (Courts “will not infer from a general contractual provision that the parties intend to waive a statutorily protected right unless the undertaking is ‘explicitly stated.’ ”). Nor does the arbitration provision by itself waive the statutory rights that might be settled in a grievance proceeding. See id. at 708 n. 12, 103 S.Ct. at 1477 n. 12; Barton Brands, 298 N.L.R.B. No. 139, 135 L.R.R.M. 1022 , 1025-26 (1990) (“[A]n agreement to arbitrate a specific discharge, without more, does not meet the exacting standards we require of a waiver of an employee’s statutory rights.”). As this court has previously observed, “[a]n employee does not waive his statutory right to be free from unfair labor practices by virtue of his being a party to a collective bargaining agreement; he is entitled to a forum in which his complaint is fully and fairly aired.” Bloom v. NLRB, 603 F.2d 1015, 1020 (D.C.Cir.1979). The Board evidently takes a position' that is more nuanced than an actual waiver theory, merely suggesting that it will only defer in cases where the statutory right at issue is waivable. A similar theory is proposed in Edwards, Deferral to Arbitration and Waiver of the Duty to Bargain: A Possible Way Out of Everlasting Confusion at the NLRB, 46 Ohio St.L.J. 23 (1985). This distinction between waivable and non-waivable statutory rights, expressed for the first time by counsel at oral argument, appears nowhere in past Board deferral cases and was not made clear in the decision to defer Hammontree’s charge. See Darr v. NLRB, 801 F.2d 1404, 1408 (D.C.Cir.1986) (“[T]he Board does not ex *1515 plicitly set forth a waiver theory or even consider whether a union can legitimately waive an individual employee’s rights under Section 8(a)(1) and (3) of the Act, and if so whether the agreement in this case has in fact done so.”). Although the court in Darr “reserve[d] the question whether a union can waive employees’ NLRA protection against discrimination based on the employee’s union activity in return for different collective bargaining rights,” id. at 1408-09 n. 8, the same concerns about deferring an employee’s retaliation charge to a sham grievance proceeding arise whether or not he could waive his § 8(a)(3) rights. The Board did not take the position that deferral was appropriate because Hammon-tree had or could have waived his statutory rights, and this would be an entirely different ease had it done so. Indeed, if there was waiver, the Board would not even have the discretion not to defer, see Concurring Opinion at 1503, a dubious proposition in light of the clear command in § 10(a) that the Board’s authority to prevent unfair labor practices cannot be affected by agreement. The majority maintains that because Articles 21 and 37 in the collective bargaining agreement parallel the nondiscrimination guarantees in the Act, Hammontree’s claims of retaliation can properly be submitted to arbitration. However, the fact that the union claims to have bolstered employees’ protection against discrimination by negotiating the inclusion of these provisions in the contract would not deprive Hammontree of his preexisting statutory right to bring a claim under section 8(a)(1) and (3) before the Board. An individual’s right to freely engage in union activities without fear of retaliation exists independently of any contract and cannot be diminished or diffused by its reiteration in a collective bargaining agreement. Cf. Local 900, Internat'l Union of Elec., etc. v. NLRB, 727 F.2d 1184, 1190 (D.C.Cir.1984) (non-economic rights of employees under the Act are not waivable to the same extent as economic rights affecting union officials). In analogous contexts, the Supreme Court has repeatedly made it clear that the statutory rights of individual employees to present their grievances before a public forum could not be denied by the existence of a private dispute resolution mechanism. In Alexander v. Gardner-Denver, 415 U.S. 36, 59-60 , 94 S.Ct. 1011, 1025 , 39 L.Ed.2d 147 (1974), the Court rejected deference to arbitration of a discrimination claim under Title VII. A similar point was made in Barrentine v. Arkansas-Best Freight System Inc., 450 U.S. 728 , 101 S.Ct. 1437 , 67 L.Ed.2d 641 (1981), discussing an employee’s rights under the Fair Labor Standards Act. While courts should defer to an arbitral decision where the employee’s claim is one that is based on rights arising out of a collective bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers. Id. at 737 , 101 S.Ct. at 1443 . Finally, in McDonald v. City of West Branch, 466 U.S. 284 , 104 S.Ct. 1799 , 80 L.Ed.2d 302 (1984), the Court decided that an employee’s First Amendment rights could not be left to arbitration so as to foreclose suit in federal court under 42 U.S.C. § 1983 . The majority distinguishes these decisions as based on other statutes, but the court thereby ignores the Supreme Court’s clear teachings on the general question of deferring employees’ claims to arbitration. “Although the analysis of the question under each statute is quite distinct, the theory running through these cases is” the same. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 565 , 107 S.Ct. 1410, 1415 , 94 L.Ed.2d 563 (1987). In Alexander , the Court noted that Congress had also contemplated access to both public and private forums for the resolution of charges under the National Labor Relations Act: “Where the statutory right underlying a particular claim may not be abridged by contractual agreement, the Court has recognized that consideration of the claim by the arbitrator as a contractual dispute under the collective-bargaining agreement does not preclude subsequent consideration *1516 by the NLRB as an unfair labor practice charge.” 415 U.S. at 50 , 94 S.Ct. at 1020 . One of the reasons for not deferring to arbitration in these cases was the possibility that the union would not fully pursue an employee’s statutory rights. In Barren-tine, the Court recognized that the interests of rank-and-file employees may well diverge from the union. A union might legitimately sacrifice the individual claims of certain employees for what it believes is the greater good of the work force. See 450 U.S. at 742 , 101 S.Ct. at 1445 ; Vaca v. Sipes, 386 U.S. 171, 190-91 , 87 S.Ct. 903, 916-17 , 17 L.Ed.2d 842 (1967). Certainly, the joint labor-management arbitration committees at issue here might well choose to address a particular employee’s grievances through a generalized give-and-take of union/employee interests, instead of by conscientiously enforcing the terms of the statute. The majority fails to fully appreciate the possibility that the interests of the union may diverge from those of the employee. Indeed, Hammontree was at odds with his union’s leadership; restricting him to a drumhead proceeding where his antagonists are viewed as his protectors frustrates the goals of the Act. D. Exhaustion of Remedies The court contends that this is solely an exhaustion of remedies question and does not foreclose subsequent judicial review in case the grievance committee rejects Ham-montree’s unfair labor practice claim and the Board summarily affirms that decision. While that characterization may ease the court’s conscience, it ignores reality. The Board’s precedents amply suggest what will happen if Hammontree’s grievance proceeding is ever concluded: it will no doubt defer yet again, according significant deference to the arbitrator’s decision. A challenger to an arbitration decision bears the burden of showing that it was repugnant to the Act or that the statutory issues were not fairly decided. See Olin Corp,, 268 N.L.R.B. 573 (1984). An individual’s right to have the Board review an arbitrator’s decision under Olin’s highly deferential standard is fundamentally unlike the right to de novo consideration of an unfair labor practice claim by the Board. In cases such as this, where the risk of structural bias against an aggrieved employee is obvious, even careful review on appeal will not assure that the employee’s statutory rights, including the priority expressed in § 10(m), are fully protected. Under the method used by the Teamster Joint Arbitration Committee, a “bi-partite” panel consisting of an equal number of union and employer representatives hears the employee’s grievance. If the initial panel is deadlocked, the grievance proceeds to the next level, and so on up the line. There is no telling how much time will elapse before Hammontree has fully exhausted this private dispute resolution machinery and can once again appear before the Board if and when his discrimination charges are rejected. Such an arrangement fails to satisfy the requirements of diligence imposed on the Board by the Landrum-Griffin Act. Nor is it clear whether an employee who dutifully proceeds to arbitration from the outset loses his right to bring an unfair labor practice complaint before the Board under § 10(b) if the arbitration process takes more than a few months. While the Board will undoubtedly toll the running of the six month limitation period in Hammontree’s case, and for others who first come to the Board before being sent back to arbitration, what happens to workers who wait for arbitration to conclude before pursuing their statutory rights before the Board? There are other deficiencies in the Teamsters’ grievance mechanism that may well hamper effective review after exhaustion. This is not arbitration in the traditional sense where parties submit their dispute to a neutral third party. After hearing the individual’s claim, the joint committee meets in private and either grants or denies the claim without a word of explanation for its decision. Since no record is kept, there is simply no way of knowing that the individual’s claim has been fairly decided, let alone the grounds for the curt decision. Such a scenario is particularly unacceptable if the individual employee is, as in this case, at odds with his union leadership. *1517 “[T]he Teamster system does not adequately protect the individual from management or union discrimination. In effect, it mandates negotiation over whether the statute has been violated and places the alleged violators in the position of deciding the outcomes of the grievance.” Comment, The Teamster Joint Grievance Committee and the NLRB Deferral Policy: A Failure to Protect the Individual Employee’s Statutory Rights, 133 U.Pa.L.Rev. 1453, 1457 (1985). As there is no way to ensure that the employee will be adequately represented or that the arbitrator will properly interpret the governing statute, deferring an individual discrimination case to arbitration denies the employee the legal protection that he would receive if his case were heard de novo by the Board. See also Note, The NLRB and Deference to Arbitration, 11 Yale L.J. 1191, 1204-08 (1968). The courts have never insisted upon exhaustion of remedies when the legal challenge implicates the very remedy itself. See Association of National Advertisers v. FTC, 627 F.2d 1151, 1156-57 (D.C.Cir.1979), ce rt. denied, 447 U.S. 921 , 100 S.Ct. 3011 , 65 L.Ed.2d 1113 (1980). In other contexts, we have made it clear that exhaustion is a prudential doctrine that should be applied flexibly and not when further pursuit of remedies is futile. See Cutler v. Hayes, 818 F.2d 879, 890-91 (D.C.Cir.1987). In previous situations where employees first lost at arbitration, courts have not insisted on strict adherence to a requirement that grievance procedures be exhausted before statutory proceedings may be initiated. See Barrentine, 450 U.S. at 738 n. 12, 101 S.Ct. at 1443 n. 12. Blind insistence on an exhaustion requirement may only mean that “the [employee] becomes exhausted, instead of the remedies.” NLRB v. Marine Workers Local 22, 391 U.S. 418, 425 , 88 S.Ct. 1717, 1722 , 20 L.Ed.2d 706 (1968) (“There cannot be any justification to make the public processes wait until the union member exhausts internal procedures plainly inadequate to deal with all phases of the complex problem concerning employer, union, and employee member.”). In effect, the court’s holding subjects Hammontree to compulsory arbitration, a regime that is anathema to the clear intent of Congress and contrary to this country’s general disdain for such a system of dispute resolution. “Congress has expressly rejected compulsory arbitration as a means of resolving collective-bargaining disputes,” NLRB v. Amax Coal Co., 453 U.S. 322, 337 , 101 S.Ct. 2789, 2798 , 69 L.Ed.2d 672 (1981), and the Supreme Court has repeatedly emphasized that “[n]o obligation to arbitrate a labor dispute arises solely by operation of law.” Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 374 , 94 S.Ct. 629, 635 , 38 L.Ed.2d 583 (1974) (“The law compels a party to submit his grievance to arbitration only if he has contracted to do so.”). While the parties’ freedom of contract is not absolute under the Act, allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based — private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract. H.K. Porter Co. v. NLRB, 397 U.S. 99, 108 , 90 S.Ct. 821, 826 , 25 L.Ed.2d 146 (1970). By forcing Hammontree to submit to an arbitration he never agreed to and never sought, the court effectively converts its obligations to protect his remedies under the law into a compulsory arbitration process where the arbitrators are his disputants. The court concludes that the “Board’s deferment policy simultaneously recognizes the need for prompt resolution of ULP claims, the importance of individual statutory rights, the limitations on Board resources, and the salutary effects of arbitra-tion_” Maj.Op. at 1499. If only the Board’s approach were so balanced and enlightened. Deferral to arbitration is perfectly legitimate when the issues submitted to the arbitrator require interpretation of a contract, or when the employee consents to arbitration of his unfair labor practice claim. However, when an unfair labor practice against an employee is involved, *1518 and the employee brings the charge before the Board, we ought not allow Board deferral to a potentially hostile or indifferent agent for enforcement of the employee’s statutory rights. Although the Board assures Mr. Hammontree that it retains ultimate jurisdiction to ensure that the result reached is not repugnant to the Act, the deferential standard of review makes it extremely unlikely that an arbitration decision will be overturned or thoroughly reviewed, to say nothing of the extensive delay that Congress specifically legislated against in the Landrum-Griffin Act. Indeed, under the Teamsters’ grievance system, the goal of expediting employees’ discrimination claims is turned on its head. Conclusion The court today restructures the congressional scheme for protecting workers from unfair labor practices, telling the National Labor Relations Board that it may entrust the statutory rights of individual employees to a grievance system of most dubious dimensions. Congressmen Land-rum, Griffin, Senator Dirksen and the other sponsors of the Landrum-Griffin Act would be saddened to know that their valiant efforts in the 86th Congress came to so little avail for Mr. Hammontree and similarly situated dissident union members. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481337. Public record. Not legal advice.