In an ongoing battle between tribal sovereignty and federal labor law, the Saginaw Chippewa Indian Tribe is challenging the National Labor Relations Board’s claim that it has jurisdiction over the tribe’s employees at Soaring Eagle Casino and Resort. The case could impact all of Indian country.
On Oct 27 the National Labor Relations Board (NLRB) issued a decision ordering the tribe to rehire an employee who had been fired for union organizing, give her four years of back pay, and post notices in the workplace admitting it had violated federal labor law and reiterating employees’ rights to unionize. The board claims jurisdiction over the employees because it claims, among other things, that the tribe is engaged in interstate commerce.
The tribe does not acknowledge the board’s authority and refuses to abide by the order, Frank Cloutier, the tribe’s spokesman and an enrolled member, told ICTMN. “The tribe has filed an appeal in the 6th Circuit Court of Appeals and that case is currently pending,” Cloutier said. The case could ultimately end up in the U.S. Supreme Court, he said.
The Saginaw Chippewa position, which is shared by many tribes throughout the country, is that the federal law that allows for union organizing – the 1935 National Labor Relations Act (NLRA) – does not apply to federally recognized Indian tribes or their gaming facilities.
“The tribe’s position rests on two legal principles: one, that the federal law does not apply to state governments and Indian tribes are not mentioned at all in the law; and two, that the application of the federal law to the tribe would violate the tribe’s rights under its treaties of 1855 and 1864,” Cloutier said.
This will be the second time the 6th Circuit Court will hear an appeal in the four-year-old case, but the first time it will rule on it. The tribe fired employee Susan Lewis in 2010 under a tribal law that prohibits employees from soliciting union support among workers at its casino in central Michigan. She challenged her dismissal before the NLRB which ruled against the tribe in April 2013, ordering the casino to reinstate her. The tribe refused, arguing that the NLRB lacked jurisdiction over the casino because it was owned by a sovereign government.
In its October 27 order, the NLRB told the tribe to rehire Lewis with back pay and post and distribute notices to employees stating that the tribe had violated federal labor and would, among other things, “revise or rescind our no-solicitation rule prohibiting employees from soliciting other employees during non-work time to support the union or any other labor organization, and distributing union literature or campaign paraphernalia during non-work time in non-work areas.”
On the same day that the NLRB issued its decision against the tribe the board conducted a vote to unionize the Soaring Eagle’s security employees into the Security, Police and Fire Professionals of America union. Of the 159 eligible voters, 129 people voted with only 16 voting to join the union, Cloutier said.
Tribal leaders issued a statement in response to the vote. “We have some of the finest people working with us and we are proud of the service and product that we provide," Bob VanWert, the casino’s interim CEO, said he was “extremely pleased. . . [that] nearly 90 percent of our security staff wish to remain union free. I look forward to our continued teamwork and sincerely appreciate their vote of confidence."
The Oct. 27 vote was the fifth attempt to unionize SECR employees, Cloutier said.
Indian Country’s 10-Year Battle with the NLRB
On Dec. 21, 2007, the housekeeping staff at the Soaring Eagle voted 192 - 88 against unionization. Almost all of the eligible voters in the full-and part-time housekeeping staff participated in the vote, which was organized by the Teamsters Union Local 486.
Ed Morin, the Teamsters’ business agent, promised to continue the effort to unionize. ''They waxed us pretty good [but] we're not walking away from it,'' Morin told the local Morning Sun newspaper.
The Teamsters had been trying to organize Soaring Eagle workers for more than a year. It was the first time its workers voted on unionization and the vote came on the heels of a widely successful union vote at Foxwoods Casino & Resort in Connecticut.
The Mashantucket Pequot leadership had encouraged the UAW and employees to submit their petition for a union vote under the tribe's labor laws, which had been enacted the previous summer as workers were organizing. ''We aren't anti-union,'' Mashantucket Pequot general counsel Jackson King said at the time. ''We believe employees have the right to form a union and bargain collectively and we asked the employees to file their petition under tribal law, but they have not done it. This is not about the right of employees to unionize. This is about whether you respect tribal law or not.''
After almost a year-long 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 announced a groundbreaking agreement to negotiate a labor contract under tribal law.
Several other unions have been formed under tribal law since then.
The push to unionize Foxwoods came on the heels of a precedent-setting ruling in February 2007. San Manuel v. the NLRB began in 2004 as a conflict between two unions. In 2007 the U.S. Court of Appeals for the District of Columbia Circuit Court disregarded 75 years of tribal exemption from the 1935 enactment of the NLRA and ruled that federal labor laws apply on sovereign Indian land in a casino owned by the San Manuel Band of Mission Indians in California.
RELATED: Labor Ruling Threatens Sovereignty
The D.C. circuit court is the only appeals court so far to have ruled on a case pitting tribal sovereignty against federal labor laws. If the 6th Circuit court rules in favor of the Saginaw Chippewa, the issue is likely to be petitioned to the U.S. Supreme Court.
Cloutier says the tribe is all-in on the case. “At the end of the day, the better of two evils is probably to build your [tribal labor] ordinances and work well together,” he said. But that decision is up to the tribal leadership and is not likely to happen any time soon, he said. “However, to this point, I can tell you that our leadership have dug their heels in and said the NLRB just simply does not have jurisdiction. More than 75 years of precedent is being ignored, plus the fact that we’ve been involved in ‘interstate commerce’ for hundreds of years, and the fact it’s a violation of our treaties,” Cloutier said. “Those treaties were here before the NLRB and certainly supersede the NLRB.”