Tribal sovereignty vs. casino unionization

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Once again, the issue of tribal sovereignty has pushed its way to the forefront in the world of Indian gaming. This time, the issue has risen because certain states are trying to force tribes to allow labor unions to organize employees of tribally owned casinos.

In January 2001, Rep. J. D. Hayworth, R-Ariz., proposed the "Tribal Sovereignty Protection Act," (H.R. 103) to counter "unionization agreements" mandated by the states of California and New York for inclusion in gaming compacts.

The bill, designed as an amendment to the 1988 Indian Gaming Regulatory Act, would prohibit "negotiated Tribal-State compacts from including, or being conditioned upon, any provision relating to labor terms or conditions for employees of tribally owned businesses located on Indian lands," according to the House of Representatives web site.

On April 17, a trio of prominent Indian officials testified before the House Resources committee regarding H.R. 103. One was Keller George, president of the United South and Eastern Tribes, a confederation of 24 Indian nations in the eastern and southern regions of the U.S. Fifteen of these tribes are involved in gaming; nine with Class III and six with Class II. George noted that he was unaware of any USET member tribes having unionized workforces at their gaming establishments.

In his testimony, George, also chairman of the Oneida Nation of New York's Gaming Commission, explained how forced union organization threatens the sovereignty of tribal governments.

[Indian Country Today is owned by Four Directions Media Inc., an enterprise of the Oneida Indian Nation of New York.]

George insisted that he is neither pro- nor anti-union; he readily applauded many union accomplishments over the years toward ensuring employee rights in the workplace, as well as decent wages, benefits and vacation time for workers across the country. He also noted that many Indian workers in various trades are proud to carry union cards.

George pointed out, however, that many tribes depend heavily upon gaming as their sole or primary source of funds to support projects enhancing the welfare of tribal members. "Gaming revenues have allowed some Indian nations to end the centuries' old cycle of poverty and reliance on federal dollars," he said.

"Indian gaming is dedicated, structured and oriented to benefit tribal self-sufficiency and people, not Wall Street or private business interests," said Deron Marquez, chairman of the San Manuel Band of Serrano Mission Indians of California. "Our priorities and goals are substantially different than those who are engaged in gaming solely as a business."

Thus, some tribes are reluctant to allow unions to organize employees not because tribes are anti-union, but rather because they are afraid of outside interference with their revenue streams.

"I can understand why some Indian nations would decide that they cannot afford to allow unions to organize in their businesses," George said. "I can understand why some Indian nations would feel that the possibility of a strike or work stoppage would threaten their ability to provide essential government services. I can understand why some Indian nations feel that they cannot subject the welfare of their people to the threat of a labor dispute." Marquez agreed.

"The arbitrary disruption of [tribal gaming] could be disastrous to governmental programs and operations," he said. "How those relations are governed must be determined in accordance with tribal governmental policies, since to do otherwise gives rise to the potential, and to the assumption, that forces outside the reservation can and should control tribal governmental operations."

Marquez pointed out that his Band voluntarily negotiated with and reached a collective bargaining agreement with a "major labor union" a few years ago that remains in effect, adding that the Band is "one of the few tribes that have done so in the Indian gaming industry." Like George, he stressed that he is neither "pro" nor "con" regarding unions; his support of H.R. 103 comes from sovereignty concerns.

George further argued that states demanding casino unionization are using the IGRA to undermine the National Labor Relations Act.

"The NLRA strikes just the right balance of allowing the unions and employers to present their positions to the employees who must ultimately decide whether they want a union," George testified. "These states are using the IGRA to circumvent the NLRA by imposing rules that tip the delicate labor-management balance strongly in favor of unions. These provisions deny employees of Indian-run casinos the right to a free choice in deciding whether or not they want to join a union. As a matter of federal policy, Congress already decided through the NLRA that employees should have that choice. The states' use of IGRA to take away the employees' free choice is illegal."

Joe A. Garcia, a tribal councilor from the Pueblo of San Juan in New Mexico, also appeared before the committee. He cited a Jan. 11 ruling by the 10th Circuit Court of Appeals, in National Labor Relations Board v. Pueblo of San Juan, that "affirmed the power of my Pueblo to outlaw compulsory union membership on its land."

"The Tribal Council, rather than the NLRB, should make the labor policy for Pueblo land," Garcia explained. "By a nine-to-one margin, the 10th Circuit agreed."

This ruling clarified the fact that states cannot impose labor relations policies on tribal governments, yet New York and California, by threatening not to sign compacts with their tribes, are attempting to do just that, Garcia continued.

"The compacting process was not intended to allow states to impose their will regarding ancillary issues, such as taxation and labor relations," he concluded. "Labor relations is simply not 'directly related to, and necessary for, the licensing and regulation of gaming activity,'" as required under IGRA.

George specifically objected to two practices mandated in legislation enacted last October by the state of New York. This recent law mandates that state's gaming compacts with tribes require tribal governments to remain neutral while labor unions campaign to organize casino workers.

"This means that Indian nations cannot educate their employees on issues relating to unionization," George said. "Employees are forced to decide whether or not they want a union with only the union's version of the issue. This one-sided approach is not only unfair to employees; it is also contrary to the system established by Congress under the NLRA."

George added that NLRA "expressly states that the employer's presentation of its opinions to its employees does not constitute an unfair labor practice."

The other problem with the New York law, according to George, is its lack of provision for secret-ballot elections. Employees instead indicate their union preference by signing authorization cards; if a majority of employees sign such cards, the union is permitted to organize that bargaining unit's workers.

"This destroys the whole purpose of the secret ballot and is contrary to the intent of NLRA to protect the free choice of employees in selecting a union," George asserted. He noted that on some occasions, organizers collected signed cards from a majority of a particular bargaining unit's employees, who then turned around and voted by secret ballot to reject the union whose cards they just signed.

"Why does this happen?" George asked. "It could happen because union organizers pressured employees to sign cards, or ? because employees thought that unionization was a good idea when they signed the card, but changed their minds when they were able to hear the employer's perspective.

"Congress felt that secret ballots and employer participation in campaigns were important tools to maintain the delicate balance between the rights of employers, employees and the unions," George said.

In the end, George, Marquez and Garcia all professed strong support for H.R. 103.

"It is simply inappropriate to permit the compact process, which was intended to govern the fundamentals of regulating gaming, to be hijacked by unrelated goals, such as the opportunity to serve competitors and to otherwise control tribal jurisdictions," Marquez testified. "This bill would correctly uncouple the gaming regulatory process from a state's or others' goals or agendas with respect to labor relations."

"An Indian government should have the right as a sovereign entity to decide whether it is in its best interest to allow unions into its workplaces," George said.

Unfortunately for gaming tribes, passage of H.R. 103 is not imminent. The measure currently has only nine sponsors, all of whom are Republicans. Democrats and pro-union lobbyists have reportedly promised vehement opposition.

"This is nothing more than an attack on working men and women and the rights of working people to organize," said Rep. George Miller, D-Calif. at the hearing.