Deferral to the Intra-Union Appellate Process - A Response by Paul Levy

By Paul Alan Levy(1)

In their recent article on the deferral policy of the National Labor Relations Board ("Board" or "NLRB"),(2) two attorneys for the United Auto Workers ("UAW"), Leonard Page and Dan Sherrick, argue that the Board has adopted "an indefensible double standard"(3) by applying its policy of "deferral to arbitration" only to contractual dispute resolution processes, but not to intra-union review procedures.(4) Deferral to intra-union procedures, they contend, would further many of the same policy objectives as deferral to arbitration,(5) with the added benefit of advancing the interest in democratic union self-government.(6) Moreover, they contend, such deferral is appropriate to prevent unions from being charged until the highest levels of the union have had the opportunity to decide whether to correct the wrong-doing, and by analogy to exhaustion rules developed for judicial proceedings to enforce the Landrum-Griffin Act and the duty of fair representation. The reasons presented for the proposal are not persuasive, however, for several reasons.

First, it is not clear whether Page and Sherrick propose only to extend the Collyer(7) doctrine of pre-arbitral deferral to section 8(b)(1)(A) charges, or whether they would also apply the Spielberg(8) doctrine of post-arbitral deferral.(9) On the one hand, much of the Page and Sherrick discussion pertains to "exhaustion,"(10) a term that connotes only deferral to a procedure from which the employee may return to the Board for a de novo hearing once the procedure is completed. Moreover, to support their argument, they invoke section 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA")(11) and Clayton v. UAW,(12) which provide only for a delay in the litigation of claims, and accord no preclusive effect to the outcome of intra-union appeals. On the other hand, the article also invokes "the Board's Spielberg-Collyer rationale,"(13) implying that Spielberg deference is also desired.

The question of whether deference is to be given to the outcome of the appeal is significant because the Board has consistently justified the Collyer doctrine by pointing out that it does not exist in isolation, but rather channels ULP claims into a procedure that will normally resolve them, subject to limited review for compliance with the standards of Spielberg.(14) Where, by contrast, a CBA does not provide for final and binding arbitration which either party can invoke, the Collyer doctrine does not apply.(15) In other words, Collyer generally does not require the submission of a case to a procedure when the only effect will be "exhaustion," i.e., a delay in the submission of the case to the Board.

As further explicated by the rejoinder to this article, it is apparent that Page and Sherrick ask that "weight" be given to the results of an intra-union appeal(16) -- not a presumption of preclusive effect, as under Spielberg, but rather a greater or lesser degree of evidentiary weight, much as a federal court might in certain circumstances weigh an arbitral award in resolving a Title VII or Fair Labor Standards Act suit.(17) But it seems highly unlikely that the Board would or could accord such weight to the outcome of an intra-union appeal, not to speak of giving it any preclusive or presumptive effect. Unlike arbitration procedures, intra-union appeals do not produce a decision either by neutrals, or by persons appointed by an entity whose interests are aligned with those of the employee. Even where the "arbitration" procedure takes place before a joint committee, as in the Teamsters,(18) the employee enjoys the theoretical protection that the interest of the union, which appoints half of the members of the committee, is aligned with the interest of the employee with respect to the statutory issue (or the parallel contractual issue) that is being remitted to arbitration.(19) Intra-union appeals, by contrast, are conducted before officials of the union (i.e., the very "interested" party that is charged with an unfair labor practice), who will presumably be inclined to uphold the union's conduct in order to avoid any backpay liability that the union might otherwise incur.(20) The Board does not apply even Collyer when the final decision in the grievance procedure is left to the party against whom the ULP charge has been filed.(21)

The UAW's Public Review Board ("PRB") arguably puts that union in a stronger position to seek post-appeal deference, because PRB decisions are rendered by a group of distinguished individuals who neither work for the union nor for any employer with which it bargains.(22) But even the PRB's members are appointed by the union, and its decisions reflect extreme deference to the union's elected officials. Indeed, although I do not have a statistical breakdown, as a subscriber to the PRB's decisions I rarely see PRB decisions that overturn the union's actions. Although this is arguably because the UAW's behavior is normally above reproach,(23) it scarcely seems likely that an arbitrator who almost always ruled in favor of employers would be selected by a union to hear grievances very often. Hence, even the PRB's "neutrality" is open to question.

And yet, unless the NLRB were willing to give deference to a decision of the union's highest appellate body that the union did no wrong, in most cases extending Collyer to intra-union appeals would not lead to the resolution of DFR claims, but would only delay their resolution by the Board. After all, an intra-union appellate body may reject the argument that the DFR was breached for at least two reasons: it may decide that there was no breach of the agreement, or it may decide that, regardless of whether there was a breach of the agreement, the lower union body did not behave improperly. Because the NLRB gives no deference to either such decision, the effect of applying Collyer is merely to cause delay.

It is only when the intra-union procedure upholds the position of the employee and leads to the reinstatement of the grievance, that Collyer deferral can produce results that resolve the DFR claim. This may be true because the grievance procedure then continues and culminates in a binding arbitration. If the arbitrator rules that the employer did not breach the CBA, the appeals process would have produced a construction or application of the CBA to which the Board would presumably defer, thus defeating the DFR claim.(24) If, on the other hand, the arbitrator decides that the CBA was violated, that presumably eliminates one of the employee's two legal hurdles in the DFR case; if the basis for reinstating the grievance was that the DFR had been violated, that may well eliminate the other hurdle, thus giving the Board a basis for proceeding directly to the question of relief for the employee.

But, if I am correct in my observation that, even when there is a "neutral" body like the PRB making decisions, most appeals would uphold the decision of the union below, then it follows that, in most cases, the parties would be left almost exactly where they were before the appeal, except that it would be months or even years later. Thus, unless there were a good reason for the Board to apply a naked exhaustion requirement, a matter which I discuss below,(25) the rationale underlying Collyer simply does not extend to intra-union appeals.

Nor do I accept Page and Sherrick's contention that adoption of an exhaustion requirement is needed to further the public interest in union democracy. To be sure, I join them in wishing that the Board would more attentive to union democracy concerns, rather than sluffing them off in the interest of stability in relations between corporate managers and union officials. There are a number of areas of law where the Board has been overly concerned to protect union institutions at the expense of dissident members. For example, the NLRB has traditionally held that an intra-union requirement that contracts be ratified by the membership may be ignored unless the union and employer expressly agreed during the negotiations that the requirement be observed,(26) although several lengthy concurrences by Board Chairman Stephens suggest that this rule may be in flux.(27) Similarly, the Board has consistently refused to extend section 8(b)(1)(A) to forbid union restrictions of the right to post reform literature at the workplace on the same terms as an employer would be forbidden to do under section 8(a)(1).(28) Indeed, the Board's failure to re-examine the Teamster joint committees, as well as its narrow approach to finding conflicts between the union grievance advocate and the dissenting employee,(29) is another example of insufficient attention to the impact of its rulings on union democracy.

I agree with Page and Sherrick that intra-union appeals can promote some democratic values, but there are also some ways in an exhaustion requirement can harm them. The first, of course, is that an exhaustion requirement inevitably imposes costs on the affected union member. Not only is she forced to wait for relief against an alleged violation of her rights, but there is always the danger that, as the Supreme Court noted, "the member [will] become exhausted, instead of the remedies."(30) Because the consequent burden on DFR claimants undermines the DFR as a "bulwark against arbitrary union conduct,"(31) an exhaustion requirement, by its very nature, imposes union democracy costs that have to be weighed against the benefits in deciding whether to require exhaustion in a particular context.

Second, when members are forced to submit their contentions that a local union has wrongly failed to pursue a grievance under the CBA to the decision of a higher union body, the power to decide what the CBA means passes, in effect, from the local union to the higher body. Some unions may value the creation of a highly bureaucratic system for deciding the precise meaning of each clause in a CBA, and may want to give international representatives the final decision-making power, as the UAW evidently does; this has certainly been the historic trend in the labor movement.(32) But other unions may come to different conclusions.(33)

Third, intra-union appeal mechanisms may have the paradoxical effect of facilitating unfair treatment of members by union officials. After all, one of the most important purposes of the DFR is to encourage local union officials to be careful in handling grievances. Intra-union appeal mechanisms may weaken that incentive by allowing the initial grievance handlers to believe that they need not be so careful, because if they behave improperly, they can count on being corrected, without the union facing any liability, by the appeals process. Moreover, the appeals process may give union lawyers (who, after all, tend to write the decisions of union appellate bodies) the opportunity to craft viable explanations for an action of lower level union officials whose actual motives were improper. The Board generally holds that explanations developed after a decision was made do not provide a sufficient defense to a charged unfair labor practice; the issue is not whether a respondent could have acted for lawful reasons, but whether it did act for lawful reasons.(34) By the same token, the Board should not allow the union to substitute the appellate "decision" for the actual reasons (or lack of reasons) on the union official who decided not to pursue the grievance. On the other hand, if Page and Sherrick are correct that the union's breach of the DFR is not final until its appellate bodies have had the opportunity to address the alleged violation,(35) then the exhaustion requirement would become a way for the union to substitute a lawyer's rationalization for the union officials' true reasons for dropping a member's grievance.

Fourth, the most effective appeal mechanism may well involve an independent body, like the UAW's PRB, whose members are truly neutral and whose decisions, like the awards of many arbitrators, often include sophisticated reasoning. Such a body is admittedly less likely to be influenced either by intra-union political considerations or by the possibility of union financial liability if it were to decide that a particular grievance should have been pursued. And, if the union has decided to entrust to such an independent body the power to second-guess the performance of its disciplinary and grievance adjusting functions, in order to ensure that its members are not abused for political reasons, that may have genuine value for union democracy.

On the other hand, unless the independent body is empowered to review grievance decisions on some basis broader than the DFR itself, it is hard to see what democratic gains are achieved by substituting an unelected, self-perpetuating body of outsiders for the NLRB, whose members are, after all, appointed by the President with the advice and consent of the Senate.(36) The PRB, for example, may have even less authority than the Board over alleged mishandling of grievances, because it may intervene only if the reason for dropping the grievance was based on fraud, discrimination or collusion with management, or was utterly devoid of a rational basis.(37) Nor indeed, does it claim to have authority to provide interpretations of the CBA itself.(38) Thus, balancing the pluses and minuses for union democracy caused by an NLRB rule requiring exhaustion of intra-union remedies, and coupled with the delay that such an exhaustion requirement entails, I am not persuaded that the interests of union democracy favor the Page and Sherrick proposal.

This brings me to a curious aspect of their proposal. Although their proposal is limited, by its terms, to ULP charges involving the DFR, most of their arguments would apply equally to other kinds of charges brought by members against their unions; yet they never explain why the proposal is limited to DFR cases. For example, if the possibility of reversal of the union position deprives the union's breach of the DFR of some requisite "ripeness,"(39) the same could be said about other forms of union discrimination against reformers, that was actionable under section 8(b)(1)(A) or, indeed, section 8(b)(2). So, too, does the analogy with the exhaustion proviso of section 101(a)(4) of the LMRDA,(40) apply to other kinds of ULP charges. The only argument that may not extend beyond DFR cases is that the appeal process may produce a conclusive interpretation of the CBA that resolves the DFR claim. That argument is the key to the contention that unions are being unfairly deprived of the benefits that the Collyer deferral doctrine provides to employers. But, as we have seen, that argument provides little support even for the exhaustion of DFR charges.

Indeed, the exhaustion argument may actually extend to all deferrable ULP claims, against employers as well as unions. After all, the theory is that, if the charging party pursued an intra-union appeal of the denial of a grievance, the grievance might be reinstated and an arbitral resolution of their claim, including an authoritative construction of the CBA to which the Board would then defer under Olin, might be obtained. But employers charged with ULP's under section 8(a)(3), for example, could equally benefit from such an interpretation, and so, although Page and Sherrick do not mention it, their proposal could be invoked by employers to avoid the current rule that, if the union refuses the individual employee's request to pursue the grievance, Collyer deferral is no longer appropriate.(41) And the Clayton doctrine, on which they rely to support their exhaustion proposal, is equally available to employers and unions.(42) Indeed, in their haste to avoid Professor St. Antoine's charge that their proposal is an example of "special pleading,"(43) their rejoinder to this article argues that any deferral should extend to any "private resolution mechanism, not because that mechanism serves a mandatory function under the parties' contract -- but simply because that mechanism is available . . .."(44) This standard, which would be just as applicable to a dispute resolution procedure established unilaterally by an unorganized employer as it would to an intra-union appeals mechanism,(45) takes Page and Sherrick far beyond the Collyer/Spielberg doctrine that was the original basis for their proposal and their charge of a "double standard" between employers and unions. In summary, then, the "exhaustion" analogy does not support their proposal, both because the reasons they give for it are insufficient and because the argument proves too much.(46)

Nor, indeed, are the ripeness and section 101(a)(4) arguments sound. First, although some decisions hold, as Page and Sherrick point out, that the hybrid DFR cause of action does not "accrue" for statute of limitations purposes until the member has exhausted his intra-union remedies,(47) that is simply the consequence of the existence of a general rule requiring exhaustion in such cases.(48) It is on the desirability of extending the judicial exhaustion requirement to the NLRB context that the Page and Sherrick argument depends; the invocation of terms like "ripeness" and "finality" do not aid their analysis.

And, in fact, there are significant differences between the judicial process and the NLRB administrative process that make it neither necessary nor desirable to extend section 101(a)(4)'s exhaustion rule to the NLRB.(49) Perhaps the most important difference is that, unlike a lawsuit in federal court where the formal proceedings begin immediately upon the filing of a complaint, an NLRB charge is really no more than a request to the NLRB's General Counsel that he investigate and consider filing a complaint.(50) The General Counsel then contacts the party that is charged with a violation and elicits its side of the story;(51) normally, the respondent is also given an opportunity to admit that it made a mistake and correct the error.(52) Only if the General Counsel concludes, after investigation, that the charging party has a valid claim, and the respondent insists upon litigation, is a complaint issued and an adjudicatory proceeding initiated.(53)

As a union democracy litigator, I routinely insist that my clients at least try to exhaust intra-union remedies, partly in order to avoid unnecessary litigation, and partly to induce the union to tell me its factual and legal positions, although I also weigh the prospective plaintiff's need for immediate relief in determining how long to wait before suing. Because the Board has its own way of conducting this screening function when its General Counsel decides whether to prosecute a ULP complaint, it has far less need for an exhaustion doctrine than the federal courts do. This difference, in turn, helps explain why the Board has not erred in refusing to apply to its own proceedings the exhaustion doctrine recognized by the first proviso to section 101(a)(4) of the LMRDA.(54)

If the Page and Sherrick proposal could reasonably be limited to DFR charges against unions, I might not find it so troubling, because I have qualms about the underlying duty as enforced by the NLRB; in my view, the union should not be held liable for back pay that should, in my view, be properly paid by the employer. In a "hybrid" DFR action, the employee can prevail by showing that the union breached its DFR and that the employer violated the CBA, which is actionable under section 301 of the Labor-Management Relations Act ("LMRA").(55) The union and the employer then share liability for the employee's monetary loss, according to their respective responsibilities.(56) The NLRB, by contrast, generally lacks authority to enforce CBA's,(57) and thus has no mechanism for holding the employer liable for contract violations or for remedying the section 301 "half" of the employee's hybrid suit. Instead, it subjects the union to full liability for the employee's lost back pay, at least if the grievance was meritorious.(58) Of course, the Board remedy provides certain advantages to the employee, at least theoretically, because the employee need not find her own lawyer to prosecute the case,(59) and because, once the DFR breach is established, the General Counsel need show only that the grievance was not clearly frivolous; at that point, the burden shifts to the union to prove that the grievance would have been denied.(60) To the extent that NLRB enforcement of a deferral doctrine would encourage employees to pursue their DFR/301 claims in court instead of before the Board, the effect would be to shift back pay liability toward employers and away from unions, surely a desirable result. On the other hand, it seems unlikely that the Board would be willing to acknowledge the disfavored status of DFR claims as a reason for deferral -- certainly Page and Sherrick do not do so openly -- and so they are compelled to rely on a variety of other reasons which cannot be confined to the DFR context.

In their rejoinder to this article, Page and Sherrick divide the world of Board charges into two classes, those involving contractual rights and those involving statutory rights, suggesting that only the former should be deferred;(61) they go on to argue that, although DFR claims are a sort of statutory right, they belong to a lesser class of statutory rights that only regulate the processes of relationships, and so ought to be subject to at least some level of deferral.(62) Perhaps this is an effort to articulate a reason for limiting their deferral proposal to DFR claims.

But this argument simply does not work. First, it rests on a distinction between contractual and statutory rights for which both they and I have argued,(63) but which the Board simply does not accept, and which thus can scarcely provide a basis for the Board to adopt their proposal. Second, even they concede that the DFR is a statutory right,(64) and there is no basis for according statutory rights greater or lesser importance depending on whether they affect process or substantive rights. Indeed, the distinction between process-based and substantive rights that they draw in their article is reminiscent of the very distinction between NLRA rights and Title VII and Fair Labor Standards Act rights, which Page and Sherrick do not embrace, but that proponents of deferral invoke as a reason to allow deferral of NLRA rights even though Title VII and FLSA rights may be pursued independent of contractual grievance procedures.(65) If there is any distinction to be drawn among statutory rights, other than those rights which depend on a CBA, it is between waivable and non-waivable rights,(66) and Page and Sherrick's acknowledgement that the DFR is cannot be waived by the union in collective bargaining(67) precludes the extension of deferral doctrine to DFR claims based on distinctions within the hierarchy of statutory claims.

Finally, the DFR cannot be distinguished from other statutory duties on the ground that it merely demands good faith or rationality in process. That may be a fair characterization of the aspect of the DFR standard that forbids arbitrary or perfunctory processing of grievances, but it does not apply to the portion of the DFR that forbids discrimination on an impermissible basis. Thus, at best, the Page and Sherrick proposal would allow deferral of only those DFR claims that were limited to "arbitrariness." However, DFR claims do not come neatly packaged as "arbitrary" versus "discriminatory"; the determination which sort of claim is strongest at distinction can often be made only once the case has been in litigation. Yet an employee needs to know at the outset whether exhaustion is going to be required. In these circumstances, it is not clear that such a limited exhaustion doctrine is worth the effort that would be required to divide DFR charges according to the type of DFR violation involved.

In summary, then, the reasons give by Page and Sherrick do not carry the day for their proposal. Thus, the Board's failure to extend the Collyer rule requiring that charging parties in ULP cases against employers pursue a contractual grievance against their employer, to require that DFR charges against unions be submitted first to an intra-union appeal, is not based on an "indefensible double standard," but rather recognizes the differences between the two kinds of charges and the two kinds of procedures.


1. B.A. Reed College. 1973; J.D. University of Chicago, 1976. Attorney, Public Citizen Litigation Group. I am grateful to Arthur L. Fox II and Alan B. Morrison for their comments in drafts of this article. The view expressed here, like those in my previous article, are of course my own and not necessarily those of the Litigation Group.

2. Page and Sherrick, The NLRB's Deferral Policy and Union Reform: A Union Perspective, 24 U. Mich. J. L. Ref. 647 (1991) ("Page & Sherrick").

3. Id. at 687.

4. Id. 682-687.

5. Id. 684.

6. Id. 684, 687.

7. Collyer Insulated Wire, 192 NLRB 837 (1971).

8. Spielberg Mfg. Co., 112 NLRB 1080 (1955).

9. For a discussion of the two lines of cases, Levy, Deferral and the Dissident, 24 U. Mich. J. L. Ref. 479, 494-506 (1991) ("Deferral and the Dissident").

10. E.g., Page and Sherrick, supra note 1, at 684, 685, 686.

11. 29 U.S.C. ? 411(a)(4).

12. 451 U.S. 679 (1981).

13. Page and Sherrick, supra note 1, at 684; see also id. at 686 n.179 (citing Olin as form of deferral that Board fails to extend to intra-union procedures).

14. In Collyer itself, for example, the Board decided to require deferral to the grievance procedure precisely because it anticipated that the dispute would be "resolved" by arbitrators, 192 NLRB at 841-842 (quoting Schlitz Brewing Corp., 175 NLRB 141, 142 (1969)), 842 (award will presumably be valid under Spielberg). Similarly, in National Radio Corp., 198 NLRB 527, 531 (1972), the Board explained that, in expanding Collyer to a new class of cases, "[t]he crucial determinant is . . . the reasonableness of the assumption that the arbitration procedure will resolve this dispute in a manner consistent with the standards of Spielberg." See also United Technologies Corp., 268 NLRB 557, 560 (1984) (the Collyer standard based on "reasonable belief that arbitration procedures would resolve the dispute in a manner consistent with the criteria of Spielberg," quoting dissent in General American Transportation, 228 NLRB 808, 817 (1977)).

15. Machinists District 10 (Ladish Co.), 200 NLRB 1159, 1160 n.4 (1972); Tulsa-Whisenhunt Funeral Homes, 195 NLRB 106, 106 n.1 (1972), enf'd, --- F.2d ---, 84 LRRM 2300 (10th Cir. 1973).

16. Page and Sherrick, Further Thoughts on Deferral to Private Dispute Resolution Procedures, -- U. Mich. J. L. Ref. ---, --- (1992) [DRAFT at 10, 11, 14]. [NOTE: MY PAGE REFERENCES ARE TO THE SINGLE PAGED DRAFT THAT DAN SENT ME. IF YOU WILL SEND ME THE DOUBLED-SPACED DRAFT, I'D BE HAPPY TO REVISE MY PAGE CITES ACCORDINGLY FOR YOUR CONVENIENCE]

17. Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 743 n.22 (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n.21 (1974).

18. See generally Deferral and the Dissident, supra note 10, at 552-560.

19. Page and Sherrick take me to task for my criticisms of the joint committee, suggesting that I necessarily favor a UAW-style bureaucratic "contractualism" over a wholly power-based grievance procedure, a policy choice that they say should be left to the union. Further Thoughts, supra note --, at --- [Draft: 7 and note 18] (for additional discussion of contractualism, see Lynd, Solidarity Unionism (1992). It is true that, based on my experience as a lawyer for Teamster reformers and my reading of the literature, and because I have seen clients and friends severely mistreated by the Teamster grievance procedure, I am deeply suspicious of it. Whatever theoretical attractions the notion of a "power-based" approach to grievance adjustment may have, the fact remains that the Teamsters virtually never strike over grievances.

My article does not, in any event, argue against deference to joint committee decisions where the rights at stake were "created by the labor agreement itself," as Page and Sherrick seem to think I did. Further Thoughts, supra note --, at --- [Draft 7-8]. Rather, I argued against deferral of statutory rights to that procedure. The question of how the joint committee should be analyzed when it is contractual rights that are at stake presents a somewhat different question. Although little attention paid in my article to this question, much of Page and Sherrick's refutation of my theses seems to be based on the false assumption that the article is about "deferral" in the context of enforcing contractual rights. As my article states, the DFR is the only protection that employees have when their contractual rights are at stake, but it is important that the DFR be applied to the actions of the union officials who make decisions on grievances -- i.e., the union representatives on the grievance panels -- rather than just to the union advocates who appear before those panels. As I indicate in my article, Deferral and the Dissident, supra note --, at 566-567, the courts are just beginning to recognize the need for such an extension of the DFR to both groups of union representatives.

20. Under the Letters of Agreement that allow the UAW to reinstate cases in the grievance procedure if its appellate process, including the PRB, finds that the grievance was properly withdrawn, see Page & Sherrick, supra n. 1, at 683-684, the employer is exempted from any back pay liability for the period of time between the dropping of the grievance and its reinstatement. See, e.g., Agreement between General Motors Corporation and the UAW, Document No. 52, at 383 (September 21, 1984). The union's decision to reinstate the grievance is tantamount to an admission that there was a breach of the DFR, and thus, given both the union's agreement not to hold the employer liable for this period of time, and the division of responsibility for damages set forth in Bowen, supra, the union becomes liable for the back pay during this period of time.

21. Westinghouse Elec. Corp., 206 NLRB 812, 819-820 (1973), enf. den. on other grounds, 506 F.2d 668 (4th Cir. 1974); National Football League, 203 NLRB 958, 965 (1973), enf. den. on other grounds, 503 F.2d 12 (8th Cir. 1974).

22. See Page and Sherrick, supra note 1, at 683. Many courts and commentators have expressed their respect for the PRB. E.g., Monroe v. UAW, 723 F.2d 22, 24 n.3 (6th Cir. 1983) (noting PRB membership of former judge of that court); Benson, Public Review Board and Union Democracy, Union Democracy in Action, No. 12, at 5-7 (1964).

23. A few years ago, I would not have hesitated to embrace the common assumption that the UAW, if not perfect, was at least far more democratic and tolerant of dissent than most other national unions. The reactions of the Administration Caucus over the past few years, however, as it has, for the first time in a generation, been faced with a substantial and enduring insurgent movement, make one wonder whether the union is indeed more democratic, or simply more lucky and better at co-opting dissent.

24. If, on the other hand, after the grievance is reinstated, the union drops the grievance at a later stage in the grievance procedure, then there is nothing to which the Board can defer.

25. Infra notes --- and accompanying text.

26. See Hyde, Democracy in Collective Bargaining, 93 Yale L.J. 793, 801-804 (1984).

27. E.g., Beatrice/Hunt-Wesson, 302 NLRB No. 30, 137 LRRM 1075, 1076-1079 (1991); Sierra Pub. Co., 296 NLRB No. 65, 132 LRRM 1189, 1189-1194 (1989).

28. Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981). The Board has not acquiesced in the D.C. Circuit's rejection of its position, and consequently the General Counsel refuses to issue complaints in these cases, effectively rendering the Helton opinion a nullity.

29. Deferral and the Dissident, supra note 10, at 489, 493-494 and n.66, 560-569.

30. NLRB v. Marine Workers, 391 U.S. 418, 425 (1968). Accord, Clayton v. UAW, 451 U.S. 679, 693 and n.22 (1981).

31. Vaca v. Sipes, 386 U.S. 171, 182 (1967).

32. See Levy, Legal Responses to Rank-and-File Dissent: Restrictions on Union Officer Autonomy, 30 Buff. L. Rev. 663, 668-669 (1981).

33. For example, shortly after the Supreme Court's decision in Clayton v. UAW, 451 U.S. 679 (1981), the Teamsters amended its constitution to require intra-union exhaustion in collective bargaining matters. Proposed Constitution and By-Laws of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Submitted to the Convention held in Las Vegas, Nevada, commencing June 1, 1981, at 103. Five years later, the old rule, excluding collective bargaining matters from this requirement, was reinstated. See Constitution Adopted by the 23rd International Convention, May 19-23, 1986, at 129.

34. See Wright Line, 251 NLRB 1083, 1091 n.20 and accompanying text (1980), enf'd, 662 F.2d 899 (1st Cir. 1981); Hamilton Plastics, 291 NLRB 529, 532 (1988) (refusing to consider "afterthoughts" that were not originally given as reasons for discharge).

35. Supra note 1, at 685.

36. Arguably, the very presence of the PRB may induce the elected union tribunals to extend better protections to members on their own. For example, an early study found, based on a small number of cases, that the proportion of intra-union appeals in which the UAW's executive board reversed local union discipline increased dramatically in the year following the establishment of the PRB. J. Stieber, Governing the UAW 82-83 (1962). However, the availability of judicial or administrative mechanisms of redress may have the same effect, and, if the PRB's power to intervene is no greater, it is not clear that its existence would, in fact, increase the protection afforded members in grievance handling.

37. UAW Constitution, Article 33, Section 4(i). Before Clayton v. UAW, 451 U.S. 679 (1981), the PRB did not even have authority over rational basis claims. Fox & Sonenthal, Section 301 and Exhaustion of Intra-Union Appeals: A Misbegotten Marriage, 128 U. Pa. L. Rev. 989, 1008-1009 (1980). It was, presumably, in response to the Supreme Court's criticism of this narrow focus, which excluded even some claims that were plainly covered by the DFR as enunciated in Vaca v. Sipes, 386 U.S. 171 (1967), see Clayton, supra, 451 U.S. at 694 n.24, quoting Vaca, 386 U.S. at 190, that the PRB's jurisdiction was expanded slightly to include rational basis claims. This, however, represents the most cautious union-side interpretation of the reach of the DFR, and certainly does not give the PRB any authority beyond that which is already accorded to the Board and the courts under the DFR.

38. Rather, the PRB takes the position that this task belongs to the elected bodies of the union. E.g., Morris v. Local 549, Case No. 922, at 8 (1991); Hayden v. UAW Agricultural Implement Dep't, Case No. 913, at 4 (1990); Hein v. Local 653, PRB Case No. 746, at 3 (1986); Robinson v. Local 92, 4 PRB Decisions 364, 366 (198--); Guncsaga v. Local 846, 3 PRB Decisions 315, 318 (1982). However reasonable this may be as a matter of democratic theory, it is hard to understand how Page and Sherrick can argue that the PRB's decisions may provide a construction of CBA that may help resolve the ULP charge against the union.

39. Page & Sherrick, supra note 1, at 685.

40. Id. 685, 686.

41. Deferral and the Dissident, supra note ---, at 505-506.

42. Clayton v. UAW, 451 U.S. 679, 694-695 (1981).

43. St. Antoine, Introduction to Symposium: The Government and Union Democracy, 24 U. Mich. J.L. Ref 469, 475 (1991).

44. Further Thoughts, at 5, 10.

45. A number of non-union employers have established such systems. E.g., Suburban Hospital v. Dwiggins, 83 Md. App. 97, 113 (1990). Indeed, in a state in that has adopted the Uniform Employment Termination Act, which provides for arbitration of dismissals from employment, the Page and Sherrick proposal would arguably require exhaustion of that alternate means of adjustment, as well, before the employee could resort to Board processes. Because the UAW has been so supportive of employer programs to coopt employees into "co-operating" with management, see generally Parker, Choosing Sides (198--), it is perhaps not surprising that UAW lawyers would be willing to extend Collyer and Spielberg beyond collectively bargained grievance procedures.

46. Page and Sherrick ask why I do not regard the DFR as a sufficient protection against the effect that improper grievance handling might have on ULP matters that are deferred to arbitration. Further Thoughts, supra note --, at [Draft 9]. They err in stating, id., that I did not address this issue; I argued that the DFR allows unions to fail to process grievances for a variety of reasons which, although sensible for a collective representative in apportioning the contractual rights that it has negotiated, are not a sufficient reason for the sacrifice of statutory rights. Deferral and the Dissident, supra note --, at 534-535, 543. But there is also another reason to object to application in the ULP context of the two tier system that already applies to the enforcement of contractual rights in a hybrid suit, whereby the employee must establish a breach of the DFR before she is entitled to proceed for breach of contract against the employer. If that regime comes to apply to ULP charges, so that, in order to seek redress against an employer's ULP, the employee must show that the union breached its DFR in presenting (or failing to present) the grievance to arbitration, one wonders whether, as I argued in Deferral and the Dissident, supra note --, at 543-544 n.349, the remedial aspects of hybrid litigation might also be applied, whereby the union bears a portion of the employer's backpay liability. See also infra TAN ---- [NOW 55-58]. Page and Sherrick ignore tis possible consequence of the establishment of such a regime for ULP charges.

47. Id. at 685. Although the case cited, Ghartey v. St. John's Queens Hosp., 869 F.2d 163 (2d Cir. 1989), does not actually support that proposition, other cases do. See Dement v. Richmond, F. & P. RR Co., 845 F.2d 451, 460 (4th Cir. 1988).

48. Indeed, the more common analysis, which seems to me to be the better one, is to accord a tolling effect to intra-union appeals. E.g., Frandsen v. BRAC, 782 F.2d 674 (7th Cir. 1986); Trent v. Bolger, 837 F.2d 657 (4th Cir. 1988); Hester v. Operating Engineers, 818 F.2d 1537, 1546-1548 (11th Cir.), on rehearing, 830 F.2d 172 (1987), vacated on other grounds, 488 U.S. 1025 (1989), on remand, 878 F.2d 1309 (11th Cir. 1989).

Treatment of the issue as one of ripeness or finality also leads to absurd results. Thus, on the same premise, one could argue that, so long as an unorganized employer has the option of reversing its own decision to fire somebody, such as because the employer is ultimately persuaded that its managers made a mistake, the discharge is not "final." Yet that proposition was rejected in Delaware State College v. Ricks, 449 U.S. 250, 261 (1980). The finality argument was advanced by the AFL-CIO, as amicus curiae in Clayton, as a reason to require exhaustion. 451 U.S. at 697 n.*. Although the Court did not squarely address it, the majority opinion proceeded on the assumption that exhaustion was a means to obtain "relief" from the employer's and union's breach of their obligations, id. at 692, or to force the union to "rectify the . . . wrong of which the employee complains," id. at 692 n.21; the finality argument attracted the votes of only two dissenters. Id. at 696-698.

49. For an excellent discussion of the costs and benefits of exhaustion in the judicial context, see generally Fox & Sonenthal, supra note 33.

50. See West v. Conrail, 481 U.S. 35, 40 n.7 (1987).

51. 29 C.F.R. ? 101.4.

52. 29 C.F.R. ? 101.7.

53. 29 C.F.R. ? 101.8.

54. See NLRB v. Marine Workers Local 22, 391 U.S. 418 (1968).

55. 29 U.S.C. ? 185. The nature of the "hybrid" action is discussed in DelCostello v. Teamsters, 462 U.S. 151 (1983), and Teamsters Local 391 v. Terry, 110 S. Ct. 1339 (1990).

56. Bowen v. United States Postal Service, 459 U.S. 212 (1983).

57. Deferral and the Dissident, supra note --, at 523-524.

58. Rubber Workers Local 250 (Mack-Wayne Closures), 279 NLRB 1074, 1074-1075 (1986).

59. This advantage is largely theoretical, partly because recent experience in light of the budget cuts of the 1980's suggests that a charging party needs to have a lawyer to prompt the General Counsel's lawyers to take action, and partly because, in potential hybrid cases that seem meritorious, lawyers will be attracted by the availability of attorney fees as part of the remedy. E.g., Self v. Teamsters Local 61, 620 F.2d 439, 444 (4th Cir. 1980).

60. Rubber Workers Local 250 (Mack-Wayne Closures), 290 NLRB 817, 818-821 (1988); OCAW Local 5-114 (Colgate-Palmolive Co.), 304 NLRB No. 25, 139 LRRM 1036 (1991).

61. Further Thoughts, supra note --, at ---. [Draft at 3-6]

62. Id. at 11-14.

63. Page and Sherrick complain that I distinguish between individual and collective rights, Further Thoughts, supra note --, at ---[Draft 4, 8, 9], instead of using the contract-statutory distinction which they favor, completely ignoring the extent to which my article is based on the very same distinction. E.g., Deferral and the Dissident, supra note --, at 526 (distinction affects argument based on statutory language and legislative history), 534-551 (distinction affects argument based on policies of federal labor law).

64. Further Thoughts, supra note --, at ---. [Draft 9-10]

65. E.g., Hammontree v. NLRB, 925 F.2d 1486, 1497-1498, 1501-1502 (D.C. Cir. 1991) (en banc majority and concurring opinions); Sharpe, NLRB Deferral to Grievance Arbitration: A General Theory, 48 Ohio St. L.J. 595, 620-623 (1987).

66. See Hammontree v. NLRB, 925 F.2d 1486, 1501-1502 (D.C. Cir. 1991) (concurring opinion); Plumbers Local 520 v. NLRB, No. 91-1098, Slip Opinion at 23 (D.C. Cir., February 11, 1992); Harper, Union Waiver of Employee Rights Under the NLRA: Part II, A Fresh Approach to Board Deferral to Arbitration, 4 Indus. Rel. L.J. 680 (1981).

67. Further Thoughts, supra note --, at --- [Draft 9].