Chairman: Tribe will not waive sovereign authority over employees
MASHANTUCKET, Conn. - The stage has been set for a replay of a federal appeals court ruling from last winter that said American Indian tribes are subject to federal labor law.
The regional director of the National Labor Relations Board has ruled that the United Auto Workers can hold a union election for the 3,000 table dealers at Foxwoods Resort Casino.
But the Mashantucket Pequot Tribal Nation, which owns the facility, insists that union organizing should be done under the tribe's labor laws because the nation's inherent sovereignty gives it the authority to regulate employment on its reservation.
The Oct. 24 ruling issued by Peter Hoffman, the NLRB's regional director in Connecticut, rejected the tribe's arguments at an NLRB hearing earlier in the month that the federal board has no jurisdiction over the casino at its reservation.
In issuing his decision, Hoffman cited a ruling from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit last February that rejected arguments from California's San Manuel Band of Mission Indians that the tribe, as a sovereign government, should not be subject to NLRB laws.
''Given the strikingly similar nature of the casino operations and tribal laws in the [Mashantucket Pequot] case with those in San Manuel, I see no basis for departing from the board's conclusion in San Manuel that such tribe-run business enterprises acting in interstate commerce do not fall under the 'self-governance' exception to the rule that general statutes apply to Indian tribes,'' Hoffman wrote.
The Mashantucket Pequots responded in a prepared statement, reiterating its position that the tribe's ''inherent authority'' gives it governance to regulate employment on the reservation.
''The UAW would like people to believe that this issue is about the right to organize; this is not the case. The issue is one of respecting the Tribe as a government. The Tribe has enacted a Tribal Labor Relations Law which gives employees the right to organize and bargain collectively if they choose. Tribal employees are government employees, in the same way that State employees are government employees and the Tribal law was modeled after other government's labor laws, including Connecticut's,'' the statement said.
The tribe's labor laws, which were passed last summer as employees organized the union effort, are structured around ''balanced treatment,'' Mashantucket Chairman Michael Thomas told Indian Country Today.
''We certainly support the right of our employees to choose a union, if that's what they want. We insist that it happens through tribal law, and tribal law calls for employees to have a choice all the way through - not just to choose to be in a union, but because we have right-to-work laws, like about 22 states in the nation, employees will never be forced into a union here if they choose not to be in one,'' Thomas said.
He said that the UAW was misrepresenting the tribe's position.
''While the unions are saying we're denying our employees' choice, the reality is we're giving them choice in both directions. The union would have us create a system where 49 percent of our dealers could not want a union and be forced into one, and we'll never allow that to happen.''
Thomas said a ''simple way to respect the tribe as a government and at the same time address any organizing interests of our employees'' would be to file the petition under the tribe's labor law.
The NLRB doesn't necessarily object to the petition being filed with the tribes, said John Cotter, NLRB's assistant regional director.
''The union wants federal government certification. I would speculate that they feel the tribe could recognize them one day and withdraw recognition another day, that the tribe could do whatever it wants even if it has a labor board, it's still controlled by the tribe. They want the protection of the federal government,'' Cotter said.
Cotter conceded that there is much evidence these days that the federal government does whatever it wants, ''but they're hoping it will be consistent on this one,'' he said.
The tribe has not yet decided whether to file a review of Hoffman's ruling with the full five-member NLRB board in Washington, tribal officials said.
Meanwhile, the NLRB is moving forward with plans to hold the election, which generally is held within one month of a ruling.
This, however, is not the general case, Cotter said.
''How many cases has the board had where we deal with Indian casinos? It's not your classic case involving your factory someplace. We don't have a whole lot of history dealing with Indian casinos. We're relying entirely on the prior San Manuel case, but that's only one prior case. It's not like General Motors, where we have 10,000 prior cases. It's purely speculative on my part, but I can't be sure whether the board wants to re-evaluate or what.''
Cotter said he would not be surprised if the tribe refused to allow the election to take place on the reservation, but the board can hold elections elsewhere. ''We're exploring, is all I can say.''
What happens if the NLRB certifies a union and the tribe refuses to recognize it?
It will be the San Manuel case all over again, Cotter said, ''The board will issue a decision to order them to bargain. They will refuse and then we will go to the Second Circuit Court of Appeals to try to get them to enforce the order. Then the Second Circuit gets to do the same thing [the other court] did in San Manuel. We will rely entirely on the decision in San Manuel. That's our only guideline at this point'' unless and until the issue may be may ultimately be decided by the U.S. Supreme Court, Cotter said.
But Mashantucket is not likely to pursue that path currently.
''With today's Supreme Court composition, probably not,'' Thomas said. ''It would be an exercise in futility, but we would wait for the appropriate time and press really hard when that time comes.''