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

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.

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.

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 provision2 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.

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.

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.

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.

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.

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) (discussing the "various twists and turns" of deference policy), Spielberg remains the seminal statement of the Board's deference policy.

The central issue in this case, whether the Board may require an individual employee to exhaust grievance procedures prior to filing a ULP charge, is governed by the now-familiar two-step analysis set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, we first determine "whether Congress has directly spoken to the precise question at issue"; if it has, then "that intention is the law and must be given effect." Chevron, 467 U.S. at 842-43 & n. 9, 104 S.Ct. at 2781-82 & n. 9. If the statute is "silent or ambiguous with respect to the specific issue," and if "the agency's answer is based on a permissible construction of the statute," we must defer. Id. at 843, 104 S.Ct. at 2782. Part A reviews the petitioner's "Chevron I " contentions that the NLRA and the LMRA affirmatively prohibit Board deferment in this case. Part B considers the petitioner's "Chevron II " arguments that the Board's decision was an impermissible exercise of its discretion and a departure from established Board policy.

Section 10(a) of the NLRA provides that the Board's power to "prevent ... unfair labor practice[s]" "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise...." 29 U.S.C. Sec. 160(a). Relying on his reading of the plain meaning and legislative history of Sec. 10(a), Hammontree argues that this section prohibits Board deferment of his claim. We disagree and find that Sec. 10(a) does not reflect any express congressional intention to preclude the Board's imposition of exhaustion requirements in cases such as Hammontree's.

Hammontree first contends that the plain language of Sec. 10(a) prohibits Board deferment of his claim; he reads that section as providing that no one (not even the Board itself) may diminish the Board's authority to resolve and prevent ULPs in the first instance.10 Although read literally and in isolation, Sec. 10(a) might permit such an interpretation, a far more natural reading is that Sec. 10(a) is an affirmative grant of authority to the Board, not an express limitation on the Board's authority. In other words, a more plausible reading of Sec. 10(a) is that no one other than the Board shall diminish the Board's authority over ULP claims.

This latter interpretation is supported by a contemporary congressional analysis which explained that the contested sentence "is intended 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."11 Staff of Senate Comm. on Education and Labor, 74th Cong., 1st Sess., Comparison of S. 2926 (73d Congress) and S. 1958 (74th Congress) at 3 (Comm. Print 1935) (emphasis supplied) [hereinafter "Comparison "] reprinted in NLRB, 1 Legislative History of the National Labor Relations Act 1319, 1323 (1949) [hereinafter "Leg.Hist. of the NLRS "]. As that analysis indicates, Congress was concerned about other entities--such as states or industrial boards--infringing upon the Board's jurisdiction; Congress was not concerned about the Board itself deferring the exercise of its own jurisdiction. Thus, contrary to Hammontree's contention, Sec. 10(a) is most logically read as an affirmative grant of power, firmly establishing the Board as the "Supreme Court of Labor." Comparison at 30, reprinted in 1 Leg. Hist. of the NLRA at 1357.

Hammontree also maintains that the legislative history of Sec. 10 indicates Congress' express intention to preclude Board deferment. In particular, Hammontree relies on Congress' elimination of a provision (in earlier bills and earlier drafts of the Act) which expressly stated that the "Board may, in its discretion, 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...." S. 1958, Original Senate Print, 74th Cong., 1st Sess. Sec. 10(b) (1935); reprinted in 1 Leg.Hist. of the NLRA 1295, 1301. Citing hearing testimony that Board deferment authority would result in insufficient protection of individual employee rights, Hammontree argues that Congress, reacting to that testimony, eliminated the proposed language in order to preclude Board deferment.

An equally plausible reading of Congress' deletion of the proposed language, however, is that Congress deemed it superfluous in light of the sweeping language of Sec. 10(a) itself. Again contemporary congressional analysis supports this interpretation of the legislative history, characterizing the deleted language as "carr[ying] out the same thought as the second sentence of Sec. 10(a)" and as "carr[ying] out more explicitly the purpose to establish the Board as the paramount body in labor relations." Comparison at 3, 32, reprinted in 1 Leg.Hist. of the NLRA at 1323, 1358. In sum, there is strong evidence that Congress deleted the proposed section on grounds of redundancy. Certainly, we cannot say that the legislative history of Sec. 10 reflects a specific congressional intention to foreclose Board deferment; at best, we can only say that Congress' intention in deleting the proposed section is ambiguous.

For these reasons, we must disagree with the petitioner's contention that Sec. 10(a) evidences a clear intent to preclude the Board from deferring consideration of a ULP claim until the claimant has exhausted grievance remedies under the CBA.

Hammontree also argues that the Board's deferment authority is limited by Sec. 203(d) of the LMRA, which provides that "[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." 29 U.S.C. Sec. 173(d) (emphasis supplied). Hammontree contends that his claim does not "arise over" the interpretation of the CBA and thus that deferment of his claim is not authorized by Sec. 203(d)'s mandate.12 We conclude, however, that Hammontree's claim falls squarely within the scope of Sec. 203(d) and accordingly that that section in no way precludes the Board's deferment of Hammontree's claim.

Hammontree, as we have noted, contends that Sec. 10(a) generally bars deferment, and interprets Sec. 203(d) as authorizing deferment only in cases "arising over" interpretation of the CBA. He then goes on to argue that his discrimination claim under the NLRA does not "arise over" contract interpretation even though the CBA contains an anti-discrimination provision parallel to the section of the NLRA upon which his statutory claim is based.

Initially, we observe that Sec. 203(d) reads most naturally as a general policy statement in favor of private dispute resolution, not as any kind of limitation on Board authority.13 But even if we were to assume arguendo that Sec. 203(d) does in some way limit the Board's deferment authority, Hammontree's argument fails on its own terms, for his Sec. 8(a)(3) claim does "aris[e] over [contract] application or interpretation." Hammontree's discrimination claim, although raised under Secs. 8(a)(1) and 8(a)(3), is also actionable under the contract. Article 21 of the CBA prohibits "discrimination against any employee because of Union membership or activities" and Article 37 of the CBA bars "discriminatory acts prohibited by law." These provisions led the Board to conclude that the alleged discrimination "is clearly prohibited by the contract." 288 N.L.R.B. at 1255.

Despite these contractual provisions, Hammontree contends that his "claim is simply one that arises under a statutory provision that happens to be parallel to a claim that could be advanced under the contract," and that therefore, his "claim does not rest upon a construction of the CBA." This can only be correct if the existence of parallel contractual and statutory provisions authorizes the complainant to choose one cause of action--either contractual or statutory--and nullify the other. But such an argument is founded on a misunderstanding of the relationship between the CBA and the Act. The fact that the CBA parallels the Act does not mean that Hammontree's claim arises only under either the Act or the CBA--the claim arises under both. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974) (stating that contractual rights and statutory rights under Title VII "have legally independent origins"). Contrary to Hammontree's implication, the CBA and the Act are independent sources of law governing the workplace.14

Hammontree cannot nullify his contractual claim simply by choosing to pursue his statutory claim. Such an interpretation of the law would severely undermine Congress' "decided preference for private settlement of labor disputes without the intervention of government" as reflected in Sec. 203(d). United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 37, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987). If a party could unilaterally release itself from a contractual pledge to submit complaints to arbitration simply because it had a parallel claim under the statute, then the pro-private dispute resolution policies of Sec. 203(d) would be substantially abrogated.15

Hammontree's complaint, therefore, clearly arises under Articles 21 and 37 of the CBA. As such, any limitations on the Board's deferment authority arguably created by Sec. 203(d) do not affect Hammontree's claim, and Sec. 203(d) does not preclude Board deferment of that claim.

Hammontree also argues that Sec. 10(m) prohibits deferment of his claim, because that section requires that Sec. 8(a)(3) and Sec. 8(b)(2) discrimination claims be "given priority" over most other claims. Again, we find the petitioner's reading of the statute cramped; and we reject his contention that Sec. 10(m) prohibits the Board from requiring the exhaustion of grievance remedies in Sec. 8(a)(3) and Sec. 8(b)(2) cases.

Section 10(m) of the NLRA provides, in relevant part, that

[w]henever it is charged that any person has engaged in an unfair labor practice within [Sec. 8(a)(3) or Sec. 8(b)(2)16] ..., such charge shall be given priority over all other cases except cases of like character ... and cases given priority under [Sec. 10](l )....

29 U.S.C. Sec. 160(m). Because the Board does not defer consideration of certain claims (such as Sec. 8(a)(4) complaints17) not involving Sec. 8(a)(3) and Sec. 8(b)(2) discrimination, this section might be read to prohibit Board deferment of Sec. 8(a)(3) and Sec. 8(b)(2) claims. Thus, it could be argued that the Board can only defer Hammontree's Sec. 8(a)(3) claim if it also defers all other claims (except those noted in Sec. 10(l )18).

Section 10(m) does indeed direct that Sec. 8(a)(3) and Sec. 8(b)(2) discrimination claims shall be "given priority," but the meaning of that phrase is far from clear. Although "to give priority" could conceivably be interpreted as an imperative to the Board that it must hear and decide all Sec. 8(a)(3) and Sec. 8(b)(2) claims before it hears any other claims, that phrase can just as easily be understood as a direction to the Board that it ensure the most expeditious processing of Sec. 8(a)(3) and Sec. 8(b)(2) claims consistent with its expertise and other statutory responsibilities.

The Board's deferment policy is animated by this latter interpretation of Sec. 10(m). Deferment, the Board reasonably argues, facilitates the expeditious processing of Sec. 8(a)(3) and Sec. 8(b)(2) claims by generally resolving complaints more quickly than Board proceedings could.19 The dissent cries wolf when it claims that Hammontree's rights are "be[ing] sacrificed ... so the discrimination claims brought by others can be processed more easily." Diss. at 1511. The Board's treatment of Hammontree's claim is part of a systematic policy designed to accommodate its various statutory obligations pursuant to Secs. 10(a), 203(d), and 10(m) and although individual claims may be left unresolved by arbitration so that deferment effectively delays the ultimate resolution of those claims, on the whole the policy of deferment expedites the resolution of the class of claims identified in Sec. 10(m). Thus the Board's deferment policy is fully consistent with the priority mandate of Sec. 10(m).

Given the realities of the Board's workload, an "imperative" interpretation of Sec. 10(m) unrealistically restricts the Board's prerogative to regulate its own work. The NLRB processes more than 10,000 Sec. 8(a)(3) and Sec. 8(b)(2) claims every year20; requiring the Board to process and hear every one of these claims before it hears any other claim would postpone (perhaps indefinitely) the resolution of the thousands of claims not involving Sec. 8(a)(3) and Sec. 8(b)(2).21 The legislative history of Sec. 10(m) does not indicate that Congress intended to intervene so radically into the Board's processes and expert discretion. Introducing that section as a floor amendment to the Landrum-Griffin Act, Senator Mundt expressed concern for employees who "ha[d] been deprived of a job and a paycheck" because of discrimination; he noted that "these cases are [often] left hanging on the vine for a period, sometimes amounting to years." 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 at 1253 (1959) [hereinafter "Leg.Hist. of the LMRDA "]. This history indicates that Senator Mundt's purpose in introducing Sec. 10(m) was to ensure the most expeditious resolution of Sec. 8(a)(3) and Sec. 8(b)(2) claims, not to preempt the Board's expertise in the management of its own proceedings.

The Board's interpretation of Sec. 10(m) is also to be favored because it is consistent with the Board's other statutory obligations, in particular those arising under Sec. 203(d). It is difficult to reconcile Sec. 203(d)'s express preference for private dispute resolution with an interpretation of Sec. 10(m) as requiring that the Board itself hear all discrimination claims immediately. In contrast, interpreting Sec. 10(m) to require that the Board implement a process it believes will ensure the most expeditious resolution of discrimination claims overall is wholly consistent with Sec. 203(d). Established and familiar principles of statutory construction favor this latter interpretation of Sec. 10(m), for courts are obligated to construe statutes harmoniously whenever possible. See Singer, Sutherland Statutory Construction Sec. 53.01 (4th ed. 1984). For these reasons, we find that Sec. 10(m) does not manifest a "clear congressional intent" to require immediate Board consideration of all discrimination claims. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781-82 n. 9. Accordingly, we reject the petitioner's argument that Sec. 10(m) precludes Board deferment of his discrimination claim.

In sum, the language and legislative history of Secs. 10(a), 203(d), and 10(m) do not persuade us that Congress "has directly spoken to the precise question" of whether the Board may require an employee to exhaust grievance remedies before filing a ULP charge of discrimination. On that basis, we reject the petitioner's several Chevron I arguments.

1. Limitations on the Board's Deferment Authority

Hammontree argues under the second prong of Chevron that, even if Congress did not expressly limit the Board's deferment authority in the NLRA and the LMRA, its action in his case is based on an impermissible construction of the Board's authority under those statutes. Hammontree contends that Board deferment in cases in which individual employee rights are at stake is inconsistent with a series of Supreme Court decisions beginning with Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). We find the alleged conflict illusory.

In Alexander, the Supreme Court held that Title VII creates individual statutory rights that supplement, rather than supplant, contractual rights under a CBA. Accordingly, the Court held that an employee's use of arbitration procedures did not bar a subsequent action, based on the same facts, brought in federal court under Title VII. The Court reached a similar conclusion in Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (considering an analogous claim brought under the Fair Labor Standards Act ("FLSA")) and in McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (considering a first amendment claim brought under 42 U.S.C. Sec. 1983). In each of these cases, the Court ruled that Congress (in Title VII, the FLSA, and Sec. 1983) provided a public forum for individual-rights claims and that participation in private arbitration must not diminish one's right to such a forum. Hammontree reads these cases broadly, for the proposition that "individual statutory rights cannot be sacrificed on the altar of arbitration." Thus, Hammontree maintains that these cases limit the Board's discretion to defer claims in which an individual seeks to vindicate personal rights under the NLRA.

We disagree. In Alexander, Barrentine, and McDonald, the Supreme Court held that, when individual statutory rights are at stake, arbitration of a contractual claim does not preclude a subsequent statutory claim. In this case, however, we consider not the preclusive effect of arbitration awards but rather the Board's authority to require the exhaustion of arbitration remedies.22 These issues are analytically distinct. To give an arbitration award preclusive effect would destroy an individual's right to a public forum for the protection of her statutory rights; Board deferment does not similarly nullify an employee's rights under the Act.23 As the Board has stated:

[D]eferral is not akin to abdication. It is merely the prudent exercise of restraint, a postponement of the use of the Board's processes to give the parties' own dispute resolution machinery a chance to succeed.

United Technologies, 268 N.L.R.B. at 560.24 Deferment does not diminish Hammontree's right to a public forum; it merely delays it.25

Moreover, cases following Alexander and suggesting that an exhaustion requirement would be inconsistent with Title VII26 are also not dispositive, for Title VII and the NLRA differ in several critical ways. First, under Title VII, Congress has expressly recognized that private dispute resolution and statutory relief are distinct and independent remedies; in contrast, under the NLRA, Congress has expressly legislated a preference for the use of private remedies, whenever feasible, before the resort to public remedies. Thus, in a decision suggesting that Title VII did not permit an exhaustion requirement,27 the Supreme Court relied heavily on the fact that " 'Congress clearly has retained [private dispute resolution] as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII.' " International Union of Electrical, Radio & Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 239, 97 S.Ct. 441, 448, 50 L.Ed.2d 427 (1976) (emphasis supplied) (citation omitted). But the same is not true of Congress' intent under the NLRA. In the NLRA, Congress clearly did not seek to segregate private dispute resolution as a remedy "separate from and independent of" statutory remedies. Indeed, Sec. 203(d)'s express preference for private remedies reflects Congress' considered view that, with regard to NLRA rights, private and public dispute resolution were not independent, but interdependent.28 Thus, although under Title VII an exhaustion requirement may be impermissible, Sec. 203(d) expressly authorizes such a requirement in the redress of NLRA rights.

This distinction reflects broader conceptual differences between the remedial regimes created by Title VII and the NLRA. Title VII established nonwaivable individual rights, redressable in federal court; the NLRA established waivable29 group and individual rights, redressable in a complex administrative scheme. In contrast to courts, which, under Title VII, are charged with adjudicating individual discrimination claims, the Board, under the NLRA, is charged with the overall administration of labor-management relations; accordingly, access to the Board in the first instance may be rationed differently, and exhaustion requirements in these two systems need not be identical. These differences indicate a basic flaw in applying the nonexhaustion aspect of Title VII jurisprudence to the NLRA, and lead us finally to conclude that the Alexander line of cases does not preclude the Board's deferment policy.

We, like the Board, recognize that in some circumstances justice deferred could be justice denied. As we emphasized in approving the Board's Collyer policy, deferment is a "balancing rule which requires deferral to arbitration only where a balance of ... policies favors deferral." Local Union No. 2188, 494 F.2d at 1090. Thus, if deferment posed "an undue financial burden upon one of the parties," or "prevent[ed] an orderly exposition of the law," or if "anti-union animus [indicated] that deferral ... would be a futile gesture," or if arbitration would render a subsequent statutory claim untimely,30 then deferment might be impermissible. See Local Union No. 2188, 494 F.2d at 1091. As evidenced by the multi-factor analysis in its Collyer and United Technologies doctrines, the Board has also long recognized these limitations. However, in this case there is no indication that Board deferment taken along will prejudice Hammontree's right to a public forum should his claim be denied at grievance proceedings.

We also recognize that Board deferment may be impermissible if charges are filed by an individual employee and the interests of the charging party are so inimical to those of the union as to render arbitration an empty exercise.31 Like our dissenting colleague, we are sensitive to the "possibility that [in some cases] the interests of the union may diverge from those of the employee." Diss. at 1516. Board abstention in such cases might indeed "constitute[ ] not deference, but abdication." Local Union No. 2188, 494 F.2d at 1091. Thus, the Board only defers if it holds a " 'reasonable belief that arbitration procedures would resolve the dispute' " and has " 'refused to defer where the interests of the union ... are adverse to those of the employee.' " United Technologies, 268 N.L.R.B. at 560 (citation omitted); see also NLRB General Counsel, Guideline Memorandum Concerning United Technologies Corporation (March 6, 1984), reprinted in 1984 Lab.Rel.Y.B. 344. In this case, however, the record contains no suggestion of such hostility between the union and Hammontree and, as a result, the grievance procedures offer some hope of resolving Hammontree's discrimination claim.32

More broadly, we find that the Board's policy of deferment represents a reasonable construction of the Board's statutory duties and authority under the NLRA and the LMRA.33 Courts have long recognized a "principle of deference" in reviewing agency actions " 'involv[ing] reconciling [potentially] conflicting policies.' " Chevron, 467 U.S. at 844, 104 S.Ct. at 2782 (citations omitted). In this case, as discussed above, Congress has established the Board as "the paramount body" in labor relations law in Sec. 10(a), called for the ex