Labor jurisdiction dispute continues to play out at Mashantucket

Author:
Updated:
Original:

MASHANTUCKET, Conn. – A jurisdictional dispute over whether tribal or federal labor laws apply to employees on sovereign tribal land continues to play out between the Mashantucket Pequot Tribal Nation and the National Labor Relations Board as it makes its way to federal court.

The NLRB issued a complaint in late August against Foxwoods Resort Casino, alleging that the tribal nation, Foxwoods’ owner, broke the law by refusing to bargain with a union formed under federal labor law last year and by retaliating against employees for forming the union.

On Sept. 15, the union filed another charge with the NLRB against the tribal nation, alleging an additional seven violations of the “terms and conditions of employment” under the 1935 National Labor Relations Act without bargaining with the union.

The complaint and the new charges form one more step toward a court battle over jurisdiction on tribal land, which the nation vows to take all the way to the U.S. Supreme Court. The tribe maintains it is an issue of sovereignty – federal labor laws do not apply on sovereign tribal land, the tribe says. It has asked employees who want to unionize to petition for an election under tribal law.

In June, the NLRB in Washington certified an election held last November at Foxwoods in which poker dealers voted 1,289 – 852 to join the United Auto Workers Union. Although the tribal nation allowed the election to take place at the casino under NLRB oversight, it asserted its right to challenge the federal labor board on jurisdictional grounds through the appeals process.

Following the certification, the union asked the tribe to set dates for collective bargaining and when the tribe refused, it filed a charge of unfair labor practices with the labor board in Hartford that resulted in the board issuing the complaint in late August.

A hearing on the complaint before an administrative law judge has been scheduled to begin Nov. 17.

The new charge alleging unlawful changes in terms and conditions of employment, and any other charges UAW may file between now and then, will likely be consolidated into one case, said Richard Hankins, an attorney for the tribal nation.

“So while the big issue of the authority to issue certification of the union is pending and working its way to the courts for review, the UAW is preserving its arguments that Foxwoods is not entitled to make these unilateral changes in terms and conditions; so whenever there is something the UAW perceives as a change in terms and conditions of employment, they file a charge – and that’s what’s been happening now a couple of times since the certification was issued. One could argue whether they’re major or minor changes, or whether they are changes at all; but the primary issue of jurisdiction – everything will hinge on that.”

The case is in the last phase of the appeals process. If the NLRB rules against the MPTN, as expected, the next step will be for the federal board to file suit against the tribe in federal court, an action that will kick off a whole new cycle of appeals.

The labor case has grabbed the attention of both tribes throughout Indian country and unions throughout the U.S. because it will set a precedent for labor relations between tribes and the federal government.

The NLRB based its complaint in part on a circuit court’s panel decision in January 2007 that upheld the NLRB’s own earlier ruling that the San Manuel Band of Mission Indians in California was subject to federal labor law.

Hankins said the issue is really one of civil rights.

“And it’s frustrating to me that unions claim to be on the forefront of civil rights issues, but they don’t get this. It’s not an anti-union issue. It’s an issue of sovereignty and the rights of Indian tribes, and the federal government’s promises to them of self government and sovereignty over economic affairs on their sovereign tribal land.”

It’s also a human right, according to Philip L. Harvey, associate professor at Rutgers School of Law.

He offered a solution to the issue of tribal versus federal rights during a 2006 hearing on a proposed bill that would have restored San Manuel’s authority over its tribal labor relations had it passed.

There are “two legitimate conflicting or potentially conflicting goals here: the goal of honoring and respecting the sovereignty of American Indian tribes on the one hand, and the goal of honoring and respecting the right of association of American workers – Indian and non-Indian alike – on the other hand to form, join and assist trade unions.”

In 1992, the U.S. ratified the International Covenant on Civil and Political Rights, which makes it the law of the land under the Constitution, he said.

Language in the covenant affirms both the importance of tribal sovereignty and the right to self-determination of peoples, and it also affirms that people have the right to freedom of association, including the right to form and join trade union to protect their interests.

Both goals can be accomplished, he said, “by recognizing the rights of Indian tribes to legislate in this area [and] to enact ordinances regulating the labor relations of employees within their jurisdiction, but [also] requiring that those ordinances provide protections at least as great as those provided by the NLRB and consistent with the international human rights obligations that the United States has voluntarily taken on.”

By doing so, tribal sovereignty would be enhanced at the same time the federal government fulfilled its obligation to protect the rights of individual workers, both Indian and non-Indian, in their employment, he said, citing as a model the Occupational Safety and Health Act. The act contains a provision allowing states to enact their own occupational and safety regulations as long as they are at least as great as those of the Occupational Safety and Health Administration.