Paul Hammontree v. National Labor Relations Board, Consolidated Freightways Corporation of Delaware, Intervenor , 925 F.2d 1486 ( 1991 )

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 Hammon-tree’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 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 Ham-montree’s exercise of his grievance rights (in Grievance 180) and by assigning Ham-montree less desirable runs, CF had violated §§ 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 Ham-montree’s discrimination complaint and that the Board should defer to the committee’s decision and thus need not consider anew the § 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 § 8(a), bars discrimination against union members.⁵ The AU ruled that the § 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 § 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 § 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 § 8(a)(1) and § 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 Cory., 268 N.L.R.B. 557 (1984). In that case, the Board recognized that the alleged violations of § 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) (discussing the “various twists and turns” of deference policy), Spielberg remains the seminal statement of the Board’s deference policy.

II. Analysis

The central issue in this case, whether the Board may require an individual employee to exhaust grievance procedures pri- or 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 de.fer. Id. at 843, 104 S.Ct. at 2782. Part A reviews the petitioner’s “Chevron /” 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.

A. Chevron I Analysis

1. Section 10(a) of the NLRA

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. § 160(a). Relying on his reading of the plain meaning and legislative history of § 10(a), Hammontree argues that this section prohibits Board deferment of his claim. We disagree and find that § 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 § 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, § 10(a) might permit such an interpretation, a far more natural reading is that § 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 § 10(a) is that no one other than the Board shall dimmish 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, § 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 § 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. § 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 § 10(a) itself. Again contemporary congressional analysis supports this interpretation of the legislative history, characterizing the deleted language as “carrfying] out the same thought as the second sentence of § 10(a)” and as “carrying] 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 § 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 § 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 OBA.

2. Section 203(d) of the LMRA

Hammontree also argues that the Board's deferment authority is limited by § 203(d) of the LMRA, which provides that "[filinal 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. § 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 § 203(d)'s mandate.¹² We conclude, however, that Hammontree's claim falls squarely within the scope of § 203(d) and accordingly that that section in no way precludes the Board's deferment of Ham-montree's claim.

Hammontree, as we have noted, contends that § 10(a) generally bars deferment, and interprets § 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 OBA contains an anti-discrimination provision parallel to the section of the NLRA upon which his statutory claim is based.

Initially, we observe that § 208(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 § 203(d) does in some way limit the Board's deferment authority, Hammontree's argument fails on its own terms, for his § 8(a)(3) claim does "aris[e] over [contract] application or interpretation." Hammontree's discrimination claim, although raised under §~ 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 § 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 § 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 § 203(d) do not affect Hammon-tree’s claim, and § 203(d) does not preclude Board deferment of that claim.

3. Section 10(m) of the NLRA

Hammontree also argues that § 10(m) prohibits deferment of his claim, because that section requires that § 8(a)(3) and § 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 § 10(m) prohibits the Board from requiring the exhaustion of grievance remedies in § 8(a)(3) and § 8(b)(2) cases.

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

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

29 U.S.C. § 160(m). Because the Board does not defer consideration of certain claims (such as § 8(a)(4) complaints ¹⁷) not involving § 8(a)(3) and § 8(b)(2) discrimination, this section might be read to prohibit Board deferment of § 8(a)(3) and § 8(b)(2) claims. Thus, it could be argued that the Board can only defer Hammontree’s § 8(a)(3) claim if it also defers all other claims (except those noted in § 10(i)¹⁸).

Section 10(m) does indeed direct that § 8(a)(3) and § 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 § 8(a)(3) and § 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 § 8(a)(3) and § 8(b)(2) claims consistent with its expertise and other statutory responsibilities.

The Board’s deferment policy is animated by this latter interpretation of § 10(m). Deferment, the Board reasonably argues, facilitates the expeditious processing of § 8(a)(3) and § 8(b)(2) claims by generally resolving complaints more quickly than Board proceedings could.¹⁹ The dissent cries wolf when it claims that Hammon-tree’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 Hammon-tree’s claim is part of a systematic policy designed to accommodate its various statutory obligations pursuant to §§ 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 § 10(m). Thus the Board’s deferment policy is fully consistent with the priority mandate of § 10(m).

Given the realities of the Board’s workload, an “imperative” interpretation of § 10(m) unrealistically restricts the Board’s prerogative to regulate its own work. The NLRB processes more than 10,000 § 8(a)(3) and § 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 § 8(a)(3) and § 8(b)(2).²¹ The legislative history of § 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 § 10(m) was to ensure the most expeditious resolution of § 8(a)(3) and § 8(b)(2) claims, not to preempt the Board’s expertise in the management of its own proceedings.

The Board’s interpretation of § 10(m) is also to be favored because it is consistent with the Board’s other statutory obligations, in particular those arising under § 203(d). It is difficult to reconcile § 203(d)’s express preference for private dispute resolution with an interpretation of § 10(m) as requiring that the Board itself hear all discrimination claims immediately. In contrast, interpreting § 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 § 203(d). Established and familiar principles of statutory construction favor this latter interpretation of § 10(m), for courts are obligated to construe statutes harmoniously whenever possible. See Singer, Sutherland Statutory Construction § 53.01 (4th ed. 1984). For these reasons, we find that § 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 § 10(m) precludes Board deferment of his discrimination claim.

In sum, the language and legislative history of §§ 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.

B. Chevron II Analysis

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. § 1983). In each of these cases, the Court ruled that Congress (in Title VII, the FLSA, and § 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, Barren-tine, 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 pre-clusive 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:

[Djeferral 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 Ham-montree’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 VIL' ” 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, § 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 YII an exhaustion requirement may be impermissible, § 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 nonex-haustion 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 “prevented] 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 eases 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 Hammon-tree’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 “ ‘involving] 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 § 10(a), called for the expeditious resolution of discrimination claims in § 10(m), and expressed its “decided preference for private settlement of labor disputes” in § 203(d). As the NLRB itself has observed, it is the Board’s “ ‘duty to serve the objectives of Congress [by seeking] a rational accommodation’ ” among these policies. United Technologies, 268 N.L.R.B. at 559 (quoting National Radio, 198 N.L.R.B. at 531). The Board’s deferment policy simultaneously recognizes the need for the prompt resolution of ULP claims, the importance of individual statutory rights, the limitations on Board resources, and the salutary effects of arbitration and minimal governmental intervention in labor disputes. Accordingly, the Board’s deferment policy constitutes a reasonable accommodation of its multiple statutory obligations.

For these reasons, we find that the Supreme Court’s decisions in Alexander and its progeny are not controlling and that the Board’s deferment policy constitutes a permissible and reasonable construction of the NLRA and the LMRA.

2. Consistency in Board Policy

Finally, Hammontree contends that, in ordering exhaustion of grievance remedies, the Board has departed from its established policies.³⁴ Hammontree emphasizes that he has already pursued two related grievances and that the Board has never before required a return to arbitration. But this is a distinction without a difference. The fact that the union failed to raise during the grievance proceedings a particular argument (the § 8(a)(3) discrimination claim) should not defeat the Board’s deferment policy; if the deferment prerequisites are met and an issue is suitable for arbitration, the Board may require arbitration. And as the foregoing discussion suggests, Hammontree’s claim fits squarely within the Board’s established deferment policy under Collyer and United Technologies. Thus, we reject Hammontree’s contention that the Board’s order was anything more than an unexceptional application of its established deferment policy.

III. CONCLUSION

In summary, we find that the NLRA and the LMRA do not preclude the Board from requiring a claimant to exhaust contractual grievance remedies before the Board hears a § 8(a)(3) discrimination claim. We also find that the Board’s deferment policy is reasonable and is informed by a permissible construction of the Board’s various statutory obligations, and that the Board’s order in this case was wholly consistent with that policy. Accordingly, we deny the petition for review.

1 . Throughout the dissent, Hammontree is characterized as a "dissident member of the union,” Dissent ("Diss.”) at 1505, and as “at odds with his union’s leadership,” id. at 1516. These characterizations, if true, are atmospherics only; the record contains absolutely no evidence of any hostility between Hammontree and the union in regard to this dispute. As discussed below, infra Part II. B. 1, this lack of hostility is indeed significant to our analysis.

2 . Article 6 of the CBA provides, in relevant part: The Employer agrees, subject to the following provisions, that all conditions of employment in his individual operation relating to ... working conditions shall be maintained at not less than the highest standards in effect at the time of the signing of this Agreement....

3 . Section 8(a) of the NLRA provides, in relevant part:

(a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ....

29 U.S.C. § 158(a).

4 . Article 8 of the CBA outlines grievance procedures and provides that ‘‘[a]ll grievances or questions of interpretations [sic] arising under this ... Agreement ... shall be processed” according to those procedures.

5 . Article 21 of the CBA provides, in relevant part:

Any employee member of the Union acting in any official capacity whatsoever shall not be discriminated against for his acts as such officer ..., nor shall there be any discrimination against any employee because of Union membership or activities.

Article 37 of the CBA provides, in relevant part:

The Employer and the Union agree not to discriminate against any individual with respect to hiring, compensation, terms or conditions of employment because of such individual’s race, color, religion, sex, or national origin, nor will they limit, segregate or classify employees in any way to deprive any individual employee of employment opportunities because of race, color, religion, sex, or national origin or engage in any other discriminatory acts prohibited by law.

6 . In this case, CF raised both deference and deferment issues before the ALJ. The Board affirmed the AU’s deference decision, but ordered deferment of Hammontree's claim. It is this latter aspect of the Board's order that Ham-montree now challenges.

7 . The CBA in this case provides for multiple levels of grievance proceedings, but does not provide for final and binding arbitration by a neutral arbitrator. Nonetheless, in this court and others, "bipartite committee grievance resolution procedures and decisions have been upheld as equivalent to arbitration.” American Freight System, Inc. v. NLRB, 722 F.2d 828, 830 n. 4 (D.C.Cir.1983) (collecting authorities). Therefore, references to "arbitration” in this opinion should be read to include grievance proceedings such as those at issue in this case.

8 . Thus, “deferral policy” is an unfortunate misnomer. “Post-arbitral deferral” is not deferral at all, but deference, a limitation on the scope of the Board’s review of arbitration awards. More importantly, pre- and post-arbitral deferral differ substantially in justification and in practice.

9 .See General American Transportation Corp., 228 N.L.R.B. 808 (1977) (overruling National Radio Co.). As the dissent reminds us, see Diss. at 1513-1514, "it is axiomatic that an agency choosing to alter its regulatory course ‘must supply a reasoned analysis indicating that its prior policies and standards are being deliberately changed, not casually ignored.’ ” Action for Children's Television v. FCC, 821 F.2d 741, 745 (D.C.Cir.1987) (citation omitted). Although the Board’s deferment policy has evolved substantially over the past 20 years, the Board has, in National Radio, General American Transportation, and United Technologies, offered reasoned opinions explaining its revised policies.

10 . The petitioner’s analysis is premised on the assumption that deferment of a ULP claim somehow ”affect[s]” or diminishes the Board’s authority. For purposes of Chevron / analysis, we adopt this premise arguendo; however, as we discuss below, infra Part II.B.l, this supposition may itself be faulty.

11 . The analysis continued: "The motive for writing in this section can best be understood by referring to the President’s letter to Mr. Biddle in regard to the case of Jennings v. The San Francisco Call-Bulletin." 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) [hereinafter "Comparison ”] reprinted in NLRB, 1 Legislative History of the National Labor Relations Act 1319, 1323 (1949). In Jennings, the charging party complained to the Board that he had been forced to resign because of his union activities. (Before the passage of the NLRA, the Board operated pursuant to an Executive Order.) The newspaper contended that a code established by the newspaper industry precluded Board jurisdiction. In a letter to Board Chairman Biddle, President Roosevelt " 'stepped in on the side of the newspapers’ ” and "denied the NLRB the authority to determine its own jurisdiction" in cases where such codes exist. J. Gross, 1 The Making of the National Labor Relations Board 119 (1974). Two Board members resigned in protest and the President later changed his mind. Id. at 120-21. This history clearly indicates that, in enacting the contested sentence, Congress was primarily concerned with the possibility that other entities — such as industrial boards — might preempt NLRB jurisdiction. Contrary to the dissent, Diss. at 1507, the second sentence of § 10(a), then, serves an express and significant purpose: it establishes the Board’s preeminence in labor relations.

12 . The dissent offers a similar argument, contending that Congress "carved out a limited preference" for private dispute resolution from the "unambiguous command of § 10(a)." Diss. at 1509. The dissent apparently believes that this court-rather than the Board-is the proper body to decide the precise "limits" of § 203(d), although Chevron would seem to dictate otherwise. The dissent does not appear to argue that § 203(d) is unambiguous in setting these limitations so as to require no interpretation. Indeed, it is by no means clear what the dissent itself believes to be the proper boundaries of the § 203(d) "exception": the dissent agrees that "[t]here are cases where" deferment is appropriate, Diss. at 1511, but suggests that the line should be drawn at this case. We believe that § 203(d) represents a quintessential delegation to the Board, not this court, to formulate a deferment policy that accommodates all of its varying statutory responsibilities.

13 . In dissent, our colleague suggests that § 203(d) does not reflect a "generalized preference for private dispute resolution." Diss. at 1509. He seems to argue that, because the Conference Committee, in finalizing the LMRA, considered but rejected the idea of deleting the second sentence of § 10(a) (which provides that the Board's power "shall not be affected by any other means"), that sentence should be interpreted as limiting the Board's deferment authority recognized by § 203(d). We disagree. The legislative history of the LMRA indicates that the Conference Committee retained the second sentence of § 10(a) to eliminate any ambiguity created by the passage of § 301 of the LMRA which gave federal courts jurisdiction over certain claims against employers and unions. Contrary to the suggestion of the dissent the Conference Committee, in retaining the contested sentence, sought to make "clear that, when two remedies exist, one before the Board and one before the courts, the remedy before the Board shall be in addition to, and not in lieu of other remedies." H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 52, reprinted in NLRB, 1 Legislative History of the Labor Management Relations Act (1948) at 556 (emphasis supplied).

14 . As the Board noted in Collyer and reiterated in United Technologies, in such cases "‘an asserted wrong is remediable in both a statutory and a contractual forum.’ ” United Technologies, 268 N.L.R.B. at 559 (citation omitted).

15 . The dissent’s suggestion that § 203(d)’s preference for private dispute resolution is only involved when “the [individual] employee has [ ] voluntarily submitted his [ ] claim to arbitration," Diss. at 1510 (emphasis supplied), is similarly infirm. To contend that Congress' "decided preference” — and a collectively bargained arbitration clause — can be automatically defeated at the option of an aggrieved employee is not only contrary to congressional intent, but also inconsistent with the fundamental tenet of labor law that a sound collective-bargaining agreement binds all employees. Moreover, as the Board noted, the dissent’s view "would mean ... that a union could circumvent the contractual grievance procedure by the simple expedient of having the individual employee, instead of the union, file the charge with the Board." Consolidated Freightways Corp., 288 N.L.R.B. 1252, 1255 (1988).

16 . Section 8(b)(2) provides that:

(b) It shall be an unfair labor practice for a labor organization or its agents—

(2) to cause or attempt to cause an employer to discriminate against an employee in violation of [§ 8](a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated....

29 U.S.C. § 158(b)(2).

17 . Section 8(a)(4) of the NLRA defines an unfair labor practice to include "discrimination] against an employee because he has filed charges or given testimony under th[e] Act.” 29 U.S.C. § 158(a)(4). The Board has maintained that § 8(a)(4) is "clearly required in order to safeguard the integrity of the Board’s processes” and that "the duty to preserve the Board’s processes from abuse ... may not be delegated ... to an arbitrator.” Filmation Associates, Inc., 227 N.L.R.B. 1721, 1721 (1977).

18 . Section 10(Z) creates a first-level priority for certain claims, including those involving secondary boycotts. See 29 U.S.C. § 160(f).

19 . See generally F. Elkouri & E.A. Elkouri, How Arbitration Works 7-9 (4th ed. 1985).

20 . See NLRB, National Labor Relations Board Annual Report, FY 1988 at 189. The Board’s caseload was equally substantial during the period in which § 10(m) was debated. In 1960, the year after § 10(m) was enacted, the NLRB processed more than 11,000 claims, including more than 8,000 discrimination claims. See H.R.Rep. No. 95-637, 95th Cong., 1st Sess. at 26 (1977).

21 .The dissent's interpretation of § 10(m) is not entirely coherent. The dissent decries the "delay” imposed by deferment and yet seems to call for the immediate consideration of more than 10,000 discrimination petitions — a result that would almost certainly cause even greater delay to many of these petitions than now prevails.

22 . Thus, the dissent’s reliance on Alexander is also inapt. Although the Supreme Court has noted that "consideration of [a ULP] claim by [an] arbitrator ... does not preclude subsequent consideration by the NLRB as an unfair labor practice charge,” Diss. at 1516 (emphasis supplied) (citation omitted), at the risk of redundancy, we re-emphasize that such "subsequent" consideration is not at issue in this case.

23 . A different question would be raised if the Board’s deferment policy were grounded on a waiver theory, rather than on exhaustion grounds. See generally Edwards, Deferral to Arbitration and Waiver of the Duty to Bargain: A Possible Way Out of Everlasting Confusion at the NLRB, 46 Ohio St.LJ. 23 (1985). However, as we noted in Dorr, “[s]ince the Board has not explicitly adopted that theory, it would be premature to express our view on the issue.” 801 F.2d at 1409 n. 8.

24 . See also United Technologies, 268 N.L.R.B. 560 n. 17: “Nothing in this decision diminishes the right of employees to seek statutory relief for alleged unfair labor practices."

25 . Only if Hammontree had exhausted his arbitration remedies and filed a charge, and only if the Board had then deferred to the arbitration award in deciding his complaint, would we need to determine the applicability of Alexander to claims arising under the NLRA. Notwithstanding the passionate protests of our dissenting colleague, Diss. at 1516, that is not this case and we need not now make such a determination.

We do note, however, that the Supreme Court has indicated that employee rights under the FLSA and the NLRA may differ. Compare Bar-rentine, 450 U.S. at 740, 101 S.Ct. at 1444 (holding that a union cannot waive FLSA rights) with Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 707-10, 103 S.Ct. 1467, 1476-78, 75 L.Ed.2d 387 (1983) (holding that a union may, under certain circumstances, waive members’ NLRA rights). Whether any such differences exist in the area of post-arbitral deference is not now before us.

26 . See International Union of Electrical, Radio & Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); see also Gibson v. Local 40, 543 F.2d 1259, 1266 n. 14 (9th Cir.1976) ("Exhaustion of [arbitration remedies is] not a precondition to a Title VII suit."); Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1316 (7th Cir.1974) (holding that "plaintiffs could properly proceed ... under section 1981 without first exhausting any contractual remedies"), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976); but see Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195 (4th Cir.) (holding that Age Discrimination in Employment Act does not preclude compulsory arbitration), cert. granted, — U.S. —, 111 S.Ct. 41, 112 L.Ed.2d 18 (1990).

27 . In Robbins & Myers, the Supreme Court ruled that the statutory period for filing a Title VII claim would not be tolled during the pendency of arbitration proceedings. Given the filing period under Title VII, one consequence of this ruling is that an exhaustion requirement would render many Title VII claims time-barred.

28 .In Johnson v. Railway Express Agency, 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975), relied on heavily in Robbins & Myers, the Court held that the filing of a Title VII charge did not toll the statute of limitations for filing a § 1981 action; the court stated:

We are disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies, to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted....

We generally conclude, therefore, that the remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends are separate, distinct, and independent.

As discussed above, we believe that § 203(d) expresses a “positive preference” for private dispute resolution.

29 . For a discussion of the conditions and scope of waivers under the NLRA, see Metropolitan Edison, 460 U.S. at 707-10, 103 S.Ct. at 1476-78.

30 . Cf. Robbins & Myers, 429 U.S. 236-40, 97 S.Ct. at 446-49 (holding that filing of a grievance does not toll the statute of limitations for a Title VII action); accord Diss. at 1516.

31 . Congress has frequently recognized that the rights of individual employees are often threatened not only by employers but also by unions — whether because of union corruption, "company dominated unions,” "sweetheart deals,” or other arrangements. See, e.g., 79 Cong.Rec. 7570 (1935) (remarks of Sen. Wagner), reprinted in NLRB, 2 Legislative History of the National Labor Relations Act at 2333-34 (1949); 105 Cong.Rec. 1430 (remarks of Rep. Bosch) (1959), reprinted in 2 NLRB, legislative History of the Labor-Management Reporting and Disclosure Act of 1959 at 1616 (1959).

32 . There is absolutely no evidence in the record to support the dissent’s assertion that the dispute-resolution mechanism in this case is "a sham grievance proceeding," Diss. at 1515, or a meaningless "drumhead proceeding,” id. at 1516. Empirically, it seems most unlikely, for, as noted above, Hammontree's first grievance was, in fact, successfully resolved in his favor.

33 . The dissent’s contention that United Technologies deferment is impermissible under Chevron II is unconvincing. The dissent maintains (1) that "no court has ever sanctioned” United Technologies deferment, Diss. at 1512; (2) that deferment constitutes abdication, Diss. at 1512-1513; and (3) that "Congress did not intend" such deferment, Diss. at 1513; thereupon, the dissent concludes, "Board deferral was inappropriate.” Diss. at 1513. The first of these claims is irrelevant to our analysis under Chevron II; the second is simply not true, see supra pp. 1496-1498. With regard to the third, we emphasize that Congress has expressed multiple intentions and issued numerous mandates to the Board, which, as the dissent recognizes, are in substantial tension. Given these manifold objectives and duties, this court's role is limited to assessing whether the Board’s policy constitutes a reasonable accommodation among these demands.

34 .In support of this argument, the petitioner cites a number of cases, exemplified by Hilton Hotels Corp., 287 N.L.R.B. 562 (1987), and M & G Convoy, Inc., 287 N.L.R.B. 1140 (1988). In each of these cases, the Board refused to give deference to arbitration awards because the arbitrator had not adequately considered the ULP claim (because, for example, the contractual and ULP issues were not factually parallel). These cases, however, involve only the Board’s post-arbitral deference policy under Spielberg and its progeny; in none of these cases does the Board address the question presented in this case: whether, assuming that deference is inappropriate, deferment and a return to arbitration may be appropriate. Thus, the cases cited by the plaintiff are not contrary to the Board's order in this case.