Hammontree v. N.L.R.B., 89-1137

• Decision Date: 12 February 1991
• Docket Number: No. 89-1137,89-1137
• Citation: 136 LRRM 2478,925 F.2d 1486
• Parties: 136 L.R.R.M. (BNA) 2478, 288 U.S.App.D.C. 266, 59 USLW 2520, 118 Lab.Cas. P 10,552 Paul HAMMONTREE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Consolidated Freightways Corporation of Delaware, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1486

925 F.2d 1486

136 L.R.R.M. (BNA) 2478, 288 U.S.App.D.C.

266, 59 USLW 2520,

118 Lab.Cas. P 10,552

Paul HAMMONTREE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Consolidated Freightways Corporation of Delaware, Intervenor.

No. 89-1137.

United States Court of Appeals, District of Columbia Circuit.

Argued En Banc Dec. 12, 1990.

Decided Feb. 12, 1991.

Petition for Review of an Order of the National Labor Relations Board.

Paul Alan Levy, with whom Alan B. Morrison was on the brief, for petitioner. Arthur L. Fox, II, Washington, D.C., also entered an appearance for petitioner.

John H. Ferguson, Deputy Asst. Gen. Counsel, with whom Aileen A. Armstrong, Deputy Associate General Counsel, and Linda Sher, Asst. Gen. Counsel, N.L.R.B., were on the brief, for respondent. Joseph A. Oertel and Paul J. Spielberg, Attys., N.L.R.B., Washington, D.C., also entered appearances, for respondent.

David P. Jaqua, Memphis, Tenn., for intervenor.

Before MIKVA, Chief Judge, WALD, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD, in which Circuit Judges RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, STEPHEN F. WILLIAMS, D.H. GINSBURG, SENTELLE, CLARENCE THOMAS, HENDERSON, and RANDOLPH, concur.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Concurring opinion filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Chief Judge MIKVA.

WALD, Circuit Judge:

Paul Hammontree challenges a National Labor Relations Board ("NLRB" or "Board") order that requires him to exhaust grievance remedies established by a collective bargaining agreement before the Board considers his unfair labor practice complaint. Hammontree contends that such an exhaustion requirement is both inconsistent with the Board's authority under the National Labor Relations Act ("NLRA") and the Labor Management Relations Act ("LMRA"), and a departure from the Board's past policy. We find that the NLRA and the LMRA permit the Board to require an individual employee to exhaust his grievance remedies prior to the filing of an unfair labor practice charge and that the Board's order was both reasonable and consistent with its established practices. Accordingly, we deny Hammontree's petition for review.

I. BACKGROUND

A. Factual Background

Hammontree is employed as a truck driver by intervenor Consolidated Freightways ("CF"); he drives "peddle" runs--short roundtrips of less than 200 miles. ¹ In 1982, when CF first offered peddle runs out of its Memphis, Tennessee terminal, it established a "choice of runs" policy under which available runs were posted and drivers chose runs in order of seniority. Although under this system senior drivers could choose longer (and thus more lucrative) runs, no driver knew the departure time of his or her run; as a result, drivers often "babysat the telephone." Later that year, CF and Hammontree's union local reached an oral agreement: CF would post departure times for peddle runs, but would eliminate the seniority-based "choice of runs." As part of this quid pro quo, the union also agreed to withdraw any grievances that might be filed by drivers claiming choice of runs.

In February 1985, as the union's collective bargaining agreement ("CBA") with CF was expiring, Jimmy Carrington, the local's newly-elected president, wrote a letter to CF which stated that "any agreements [between the union and CF] become null and void [on] March 31, 1985." The new CBA, which became effective in April 1985, included a maintenance of standards In late 1985, Hammontree filed a grievance ("Grievance 180") claiming that his seniority rights had been violated by peddle-run assignment practices. Pursuant to the CBA, Hammontree's grievance was heard by a "Multi-State Grievance Committee" composed of an equal number of union and management representatives. This committee failed to resolve the grievance, which Hammontree then pursued to the next level, the Southern Area Grievance Committee. That committee sustained Hammontree's claim and awarded him damages.

                provision 2 and required that any local standards not already included in the CBA be "reduce[d] to writing."    The new contract failed to specify procedures for the assignment of peddle runs and the quid pro quo agreement exchanging departure times for seniority rights was not reduced to writing
                

Thereafter, CF stopped posting run departure times. Hammontree then filed a second grievance ("Grievance 101") claiming, inter alia, that the removal of run times violated the maintenance of standards provision. The first-level grievance committee denied the claim. Hammontree then filed an unfair labor practice ("ULP") charge, and the NLRB's General Counsel issued a complaint, alleging that by removing departure times in response to Hammontree's exercise of his grievance rights (in Grievance 180) and by assigning Hammontree less desirable runs, CF had violated Secs. 8(a)(1) and 8(a)(3) of the NLRA. ³

Before the Administrative Law Judge ("ALJ"), CF maintained that the grievance committee had adequately considered Hammontree's discrimination complaint and that the Board should defer to the committee's decision and thus need not consider anew the Sec. 8(a) allegations. In the alternative, CF contended, the Board should refer the claim to the grievance procedures established under the CBA, ⁴ because the contract, like Sec. 8(a), bars discrimination against union members. ⁵ The ALJ ruled that the Sec. 8(a) claims raised a sufficiently different question from that heard by the grievance committee so that deference to the committee's decision did not bar consideration of the complaint. She also ruled that because the individual rights of an employee (as opposed to the group interests of the union) were at stake, it would be improper to require Hammontree to exhaust his grievance remedies. Upon review, the Board affirmed the first and reversed the second of these holdings. The Board held that under its policy set forth in United Technologies Corp., 268 N.L.R.B. 557 (1984), Hammontree was required to exhaust the grievance procedures established by the CBA. Consolidated Freight

ways Corp., 288 N.L.R.B. 1252 (1988). Hammontree seeks review of the Board's order.

B. The NLRB's "Deferral" Policies

This case concerns one of the Board's two "deferral" policies, its so-called "pre-arbitral deferral" policy. Under this policy, the Board refers complaints filed by the General Counsel to arbitration procedures established in the governing CBA; in doing so, the Board defers or delays its consideration of the complaint. Under a separate, so-called "post-arbitral deferral" policy, not directly implicated in this case, ⁶ the Board shows limited deference to decisions made through grievance and arbitration processes pursuant to collective bargaining provisions. ⁷

As this discussion suggests, the Board's two "deferral" policies operate in different ways and serve different purposes. ⁸ Pre-arbitral deferral (what we will, for clarity's sake, call "deferment") resembles the exhaustion requirements often found in administrative regimes and the abstention doctrines employed by federal courts. Post-arbitral deferral (what we will call "deference ") resembles appellate judicial deference.

1. The Board's Deferment Policy

In Collyer Insulated Wire, 192 N.L.R.B. 837 (1971), the Board considered a Sec. 8(a)(5) claim arising out of an alleged unilateral change of working conditions by an employer. The Board ruled that it would require exhaustion of CBA-provided arbitration remedies before it considered a Sec. 8(a)(5) claim, if certain conditions are met. Such deferment is appropriate, the Board ruled, if

(i) there is a long-standing bargaining relationship between the parties;

(ii) there is no enmity by the employer toward the employee's exercise of rights;

(iii) the employer manifests a willingness to arbitrate;

(iv) the CBA's arbitration clause covers the dispute at issue; and

(v) the contract and its meaning lie at the center of the dispute.

192 N.L.R.B. at 842; see also Local Union No. 2188 v. NLRB, 494 F.2d 1087, 1090-91 (D.C.Cir.) (affirming Collyer deferment), cert. denied, 419 U.S. 835, 95 S.Ct. 61, 42 L.Ed.2d 61 (1974).

The Board extended this deferment policy to Sec. 8(a)(1) and Sec. 8(a)(3) complaints in National Radio Co., 198 N.L.R.B. 527 (1972). After a temporary contraction of the policy, ⁹ the Board reaffirmed the National Radio policy in its 1984 decision in United Technologies Corp., 268 N.L.R.B. 557 (1984). In that case, the Board recognized that the alleged violations of Sec. 8(a) were also "clearly cognizable under the broad grievance-arbitration provision of ... the [CBA]," id. at 560, and ruled that

"[w]here an employer and a union have voluntarily elected to create dispute resolution machinery ..., it is contrary to the basic principles of the Act for the Board to jump into the fray prior to an honest attempt by the parties to resolve their disputes through that machinery." Id. at 559.

2. The Board's Deference Policy

The critical NLRB decision involving the Board's policy of deference to arbitration awards is Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955). In Spielberg, the Board ruled that it would give deference to an arbitrator's resolution of an unfair labor practice claim if certain conditions are met. As refined in subsequent cases, the Board's policy is to defer if:

(i) the ULP issue was presented to and considered by the arbitrator;

(ii) the arbitration proceedings were fair and regular;

(iii) the parties agreed to be bound by the arbitration award; and

(iv) the arbitration award was not clearly repugnant to the purposes and policies of the NLRA.

112 N.L.R.B. at 1082; see also Raytheon Co., 140 N.L.R.B. 883 (1963). Although the policy has undergone several subsequent revisions, see Darr v. NLRB, 801 F.2d 1404, 1408 (D.C.Cir.1986...