1 – Petition for Review of NLRB Decision
NLRB materials here.
Normally, we don’t post these kinds of updates from law firms, but this is so well done and has links to primary documents we crave (see bolded text under the fold), so here goes:
Three recent unfair labor practice cases leveled against Indian nation casinos by the National Labor Relations Board (NLRB) have gone in three different directions. There may be ominous implications.
First, there was the complaint against the WinStar World Casino, owned and operated by the Chickasaw Nation, filed before the NLRB’s Regional Office in Oklahoma. The NLRB charged casino managers with violating the National Labor Relations Act (NLRA) by disciplining employees who engaged in union organizing activities. The Chickasaw Nation sued the NLRB in federal court and secured an injunction to stop the case on the ground that the NLRB has no jurisdiction over labor relations within the Chickasaw Nation’s territory. The NLRB has appealed that decision to the U.S. Court of Appeals for the Tenth Circuit. It argues that federal courts have no authority to stop an NLRB unfair labor practice case until after the case has proceeded to final decision by the full Board. (Under a provision of the NLRA, parties can appeal final Board decisions to the federal courts of appeals.)
Second, there was the complaint against the Soaring Eagle Casino, owned and operated by the Saginaw Chippewa Tribe, filed before the NLRB’s Regional Office in Michigan. In that case, the NLRB charged the casino with violating the NLRA when it fired an employee for soliciting union support in violation of the casino’s non-solicitation policy. The Tribe sued the NLRB in federal court just like the Chickasaw Nation. This time, however, the federal court declined to hear the case. It said the Tribe needed to make all of its arguments to the Board before proceeding to federal court. The unfair labor practice case then went to hearing before an Administrative Law Judge (ALJ), and the casino lost. The ALJ ordered the casino to reinstate the employee and pay her back wages. The ALJ also ordered the casino to post notices to employees announcing their rights under the NLRA, stating that it had violated the NLRA, and announcing that it would revoke its non-solicitation policy. The casino has now appealed the ALJ’s decision to the full Board in Washington, D.C. It argues that the NLRB has no jurisdiction over employment relations at its casino.
Third, there was the complaint against the Fort McDowell Casino, owned and operated by the Fort McDowell Yavapai Nation. In that case, filed before the NLRB’s Regional Office in Arizona last February, the NLRB claimed that the casino maintained work rules that infringed on the ability of employees to engage in concerted activity in violation of the NLRA. Before the case proceeded to hearing before the ALJ, the casino settled with the NLRB. Under the settlement agreement on file with the NLRB’s Regional Office, the casino must post the following notice:
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The bill “To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act” was introduced last week and the text of the bill became available today.
H.R. 2335 (text)
Here’s a link to other information about the bill.
Finally, a story on the bill from The Daily Republic:
WASHINGTON — U.S. Rep. Kristi Noem, R-S.D., introduced legislation Thursday to clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty.
In 2004 the National Labor Relations Board, which is the federal agency of the U.S. government charged with conducting elections for labor union representation and other labor-related duties, determined that the National Labor Relations Act (NLRA) applies to activities on reservation lands. This bill would reverse that decision. The legislation stands to defend tribal sovereignty and promote economic opportunities on reservations lands by eliminating ambiguity in existing federal law. Continue reading →
Perhaps, given this information, via Indianz:
Foxwoods and the tribe, in their brief, claim that because only a “fraction” of the revenue from Foxwoods is available to the tribe after lenders are paid, a strike at Foxwoods would severely impact the tribe’s ability “to operate a tribal government and function as a sovereign entity.”
The record, however, does not support the claim, Kreisberg writes:
“In this regard, it is undisputed that the Employer (Foxwoods) has annual gross revenues in excess of $1 billion. … Therefore, even if the employer were to face a protracted strike, there is insufficient evidence to establish that it would lack sufficient revenues and/or capital to provide the Tribe’s 900 members, as well as employees and other visitors to the reservation, with any ‘essential’ public services.”
Didn’t Foxwoods just note concern about being able to pay its creditors? What’s in this record?
Security guards at the casino owned by the Saginaw Chippewa Tribe of Michigan have dropped efforts to unionize.
The International Union Security Police & Fire Professionals of America petitioned the National Labor Relations Board for a vote at the Soaring Eagle Casino & Resort. But the effort was dropped for an unexplained reason, The Mt. Pleasant Morning Sun reported. Housekeeping staff at the casino tried to organize last year. But they voted 2-1 against unionization.
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