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Mashantucket-UAW in groundbreaking agreement to negotiate under tribal law

MASHANTUCKET, Conn. – After almost a yearlong dispute over whether the federal or tribal government has jurisdiction over employees on sovereign tribal land, the Mashantucket Pequot Gaming Authority and the United Auto Workers union have announced a groundbreaking agreement to negotiate a labor contract under tribal law.

The announcement was made in a joint press release Oct. 31. Dealers at Foxwoods Resort Casino, which is owned by the Mashantucket Pequot Tribal Nation, voted to pursue a contract through collective bargaining in November 2007.

Since then the tribe and union have argued over jurisdiction. The union, with the backing of the National Labor Relations Board, argued that a collective bargaining agreement should be negotiated under the federal National Labor Relations Act of 1935. The nation supported the employees’ right to organize, but insisted they must do so under tribal law, arguing that the federal labor laws do not apply to sovereign Indian nations.

The potential resolution of the labor conflict at Foxwoods under tribal law has far reaching implications for all of Indian country. The case has been monitored closely by unions, tribal organizations such as the National Congress of American Indians and United South and Eastern Tribes, and tribal nations across the country. If the parties can successfully negotiate a contract under tribal laws, a new precedent will be set for labor relations between tribes and unions. A successful resolution under tribal law will also help further the dominant society’s understanding about the legitimacy of sovereign tribal nations, their laws and courts.

The Oct. 31 agreement to negotiate followed a breakthrough announcement earlier in the month that discussions were underway about the possibility of bargaining under tribal law.

“During this period the parties had been reviewing and discussing tribal labor laws focused on ensuring the UAW and its members that their rights to be represented by a union and bargain for a union contract will be fully respected and enforced by tribal institutions,” according to the press release.

The agreement calls for the two sides to enter into negotiations “without either party waiving their rights under federal law.”

The negotiations will take place over a five month period. If the parties cannot reach an agreement by then, either party has the right to seek binding arbitration under the tribal nation’s labor laws, which provide for a final decision by a mutually agreed upon neutral third party arbitrator.

Earlier in the week, the tribal council certified the UAW as the exclusive representative of a unit of table games, poker and dual-rate dealers and addressed “other concerns” raised by the union, the press release said.

“Both parties recognize the historic significance of this agreement and appreciate the fact that it could not have been accomplished without mutual respect for the legitimate concerns of all affected parties,” the release said.

Tribal and union representatives declined to comment beyond what was included in their joint press release.

“The concepts of tribal sovereignty and self-government are very important to all Native American tribes,” said Jackson King, the nation’s general counsel, in the release. “We are very pleased to have come to an understanding that both acknowledges employees’ rights to join unions and respects the rights of Native American governments.”

Elizabeth Bunn, the UAW secretary-treasurer, who directs the union’s Technical, Office and Professional Organizing Department, called the agreement “an important first step” toward a contract settlement for Foxwoods workers.

“It came about because both parties were willing to listen and address each other’s concerns. The Mashantucket Pequots have set an extraordinary example by respecting the rights of workers, and we look forward to building a strong relationship in the future,” Bunn said.

“Everyone at work is very excited,” said Bonnie Forman, a dealer who has worked at Foxwoods for almost eight years. “This is exactly what we have been working for – an opportunity to sit down with management so we can improve our workplace and make Foxwoods the best possible choice for our customers.”

An NLRB complaint alleging that the tribal nation broke the law by refusing to negotiate a contract with the union and litigation challenging NLRB’s jurisdiction over reservation activities filed in the 2nd Circuit Court of Appeals in New York will be stayed pending the outcome of negotiations.

Federal labor laws did not apply on sovereign tribal land for almost 75 years after the NLRA was passed, but in January 2007 a circuit court’s 2-1 panel decision upheld the NLRB’s own earlier ruling that the San Manuel Band of Mission Indians in California was subject to federal labor laws.

But the San Manuel case applied a narrow definition of the casino as a commercial operation and did not deal with the wider issues of tribal sovereignty, sovereign immunity, Indian preference or employee rights under tribal law, or Indian casinos as governmental operations that provide revenue for tribal services – issues that may still be resolved in court if the parties fail to reach agreement in the negotiations.

The parties may find a solution similar to one suggested by Philip L. Harvey, associate professor at Rutgers School of Law, who framed the issue as one of human rights during a 2006 hearing on a proposed bill that would have restored San Manuel’s authority over its employees had it passed.

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, Harvey said.

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

Both goals can be accomplished, by recognizing tribes’ right to pass laws regulating labor relations with employees in their jurisdiction, but also requiring those laws to 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.

Connecticut Attorney General Richard Blumenthal, who fought against the San Manuel Band and last month promised to continue fighting against the “wrongly contested rights of workers at Foxwoods” hailed the negotiation agreement as “huge and historic.”

“The National Labor Relations Board and the federal courts have agreed with my office’s position that employees at tribal casinos are entitled to the same protections afforded all workers under federal law – and we will continue to fight to ensure that those rights are recognized.”