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Labor Limitations

Unions, tribes face off in Congress, federal courts

Labor Limitations

When housekeeper Susan Lewis was fired by the Saginaw Chippewa Indians for soliciting union representation of workers at the Michigan tribe’s Soaring Eagle Casino & Resort in 2010, she didn’t anticipate becoming a cause célèbre for the U.S. labor movement.

“I just wanted our voice to be heard,” Lewis told Reuters News Service of her efforts on behalf of the United Auto Workers (UAW). “My old co-workers, they’re still afraid to talk to a union.”

Five years later, UAW litigation with the Saginaw Chippewa and related federal court cases is the focus in a nationwide dispute pitting the right of American Indians to govern their lands against federal labor law and the ability of unions to organize tribal government casino workers.

The stakes couldn’t be much higher.

Tribes view litigation in the 6th Circuit Court of Appeals in Michigan as a potential threat to their sovereignty, specifically their ability to regulate union activity in much the same fashion as do federal, state and municipal governments.

Sovereign Stakes

In an effort to level the legal landscape, Indian leaders are seeking congressional passage of the Tribal Labor Sovereignty Act, which would ensure that tribes, as is the case with other governmental entities, are exempt from collective bargaining provisions in the National Labor Relations Act (NLRA).

“Tribal governments deserve and, in fact, are entitled by law to have parity alongside other governments,” says Senator U.S. Jerry Moran (R-Kansas), sponsor of the Senate version of the sovereignty act.

Labor leaders view the court cases and sovereignty legislation as both a threat to workers’ rights and an impediment to their ability to organize some 440 Indian casinos in 28 states that, according to various sources, employ at least 400,000 people, 75 percent of them non-Indians.

“The AFL-CIO does support the principle of sovereignty for tribal governments, but does not believe this principle should be used to deny workers their collective bargaining rights and (their) freedom of association,” says William Samuel, AFL-CIO’s director of government affairs.

“I have spent my entire adult life advocating for those who work hard and come to America seeking the American Dream, freedom and the opportunity to provide,” says Maria Elena Durazo, vice president of immigration, civil rights and diversity for UNITE HERE, the nation’s largest gambling industry union with 90,000 members.

“This bill is a fundraiser, masked with the phony embrace of respect for tribal sovereignty,” Durazo said when the draft sovereignty act was passed last June by voice vote of the Senate Committee on Indian Affairs.

The committee received $248,434 in campaign contributions from Indian tribes for the 2014 election cycle, according to UNITE HERE, with Republicans getting $74,600 and Democrats $173,834.

“We won’t stand by as the Senate sells out our American rights,” Durazo said.

Tribes contend they are not anti-union, but are simply seeking labor parity with the federal government, states and municipalities, which all enjoy exemptions from NLRA jurisdiction.

“It really is a sovereignty issue for the tribes that I work with,” says Aurene Martin, president of Spirit Rock Consulting of Alexandria, Virginia, and a citizen of the Bad River Band of Lake Superior Chippewa Indians.

“Every one of them believes that, whether or not they have a union, they want to control their own destiny and be treated like other governments at the local, state and federal level.”

Off Capitol Hill, the tribal-labor dispute is being played out in federal district courts in Michigan, Oklahoma and New Mexico, where the UAW and Teamsters make no secret of their desire to swell membership with Indian casino workers.

Judges in the 6th (Michigan) and 10th (Oklahoma and New Mexico) Circuit Court of Appeals are split over what role, if any, NLRA’s National Labor Relations Board (NLRB) should have over worker disputes and union organizing efforts on Indian lands.

The division between the circuits may take the issue to the U.S. Supreme Court.

Simmering Dispute In California

Meanwhile, a tribal-labor confrontation is brewing in California, the state’s largest Indian gambling market with 60 tribes generating $7.2 billion annually from casinos, about one-fourth of the $28.5 billion generated by Indian gambling nationwide.

Unlike other tribal gambling states, California in 1999 required that 59 Indian governments seeking gambling compacts enact a model tribal labor relations ordinance (TLRO) providing a method by which unions can organize casino employees. The TLROs were intended to appease UNITE HERE, a political force in a union-friendly state.

“California is unique because union organizing was integrated into the tribal-state gaming compacts,” says Richard Guest, an attorney for the Native American Rights Fund.

“If you want to have a gaming compact, the state of California is saying—because of pressure from organized labor—you as a tribe need to have labor provisions enacted which allow for union organizing.”

But UNITE HERE has never been pleased with the 1999 TLROs, which limit strikes, ban picketing on tribal lands and, most importantly, require secret-ballot elections rather than the union-preferred method of tribal neutrality and card checks in organizing bargaining groups.

UNITE HERE has been largely unsuccessful in organizing some 50,000 workers at California casinos with the ’99 TLROs.

The union has, however, used its political clout to organize workers at a handful of tribes needing legislative ratification of new casinos as well as those new and amended tribal-state compacts.

Former Governor Arnold Schwarzenegger, in amending ’99 compacts for about a dozen tribes seeking additional slot machines, enticed several of them to enter into neutrality/card check agreements with UNITE HERE.Meanwhile, newly recognized tribes such as Lytton and Graton Rancheria also have UNITE HERE contacts.

“If you want to ensure yourself an easier time with votes in the California legislature, you’ve got a big leg up if you have UNITE HERE getting up and testifying that they’re in support of what you’re trying to do,” says a tribal official who requested anonymity.

Renegotiations also have begun on 33 1999 tribal-state regulatory compacts due to expire in 2020. And Governor Jerry Brown is making it clear that legislative ratification of the agreements will require some serious tweaking of the TLROs.

UNITE HERE state director Jack Gribbon sat in on negotiations to renew the TLRO component of a ’99 compact with the Santa Ynez Band of Chumash Indians. The tribe in August signed an agreement that did away with secret-ballot elections, allows for union picketing on tribal lands and requires neutrality and a method of mail-in ballots tantamount to card checks.

“I find it atrocious, these changes,” says a tribal attorney who requested anonymity because of confidentiality demanded of participants in the tribal-state negotiations. “The very idea that a state can force a tribal government to be quiet in a collective bargaining election is nuts.

“Not even the NLRA requires neutrality and card checks. Yet here’s Jack Gribbon using his political muscle, playing the role of the state at the negotiations table and forcing these changes.”

It’s not known if Brown negotiators will seek similar concessions as other ’99 agreements come up for renewal. Negotiators for both sides have signed confidentiality agreements not to discuss the ongoing talks.

Joginder Dhillon, Brown’s chief negotiator, declined to discuss negotiations.

Many tribes will oppose any concessions to labor.

“This isn’t over by a long shot,” one of the attorneys says.

Others are concerned with labor provisions in recent Brown compacts that allow picketing on tribal lands. The TLRO component for a compact with Jackson Rancheria, another ’99 tribe, also eliminated the requirement for a secret-ballot election and allows picketing on tribal lands.

But not all attorneys for the ’99 tribes are convinced the governor will seek neutrality/card check agreements in revised TLROs for many, if not most, of the tribes entering into compact talks.

“I don’t see the governor trying to foist neutrality and card checks upon tribes,” says a tribal lawyer familiar with negotiations. “I think you’ll see labor ordinances similar to what was agreed to in ’99. That’s where I think things are going.”

Bryan Wildenthal, a professor at the Thomas Jefferson School of Law in San Diego, also doubts Brown will tighten labor provisions demanded when the compacts were first agreed to by former Governor Gray Davis.

“The initial requirement that tribes had to engage in collective bargaining and have a TLRO, that was important to Governor Davis,” Wildenthal says. “My impression is that Governor Brown is somewhat more favorable to tribal interests. I wouldn’t expect to see Brown try to ratchet up the pressure.”

Courts Split On NLRB Jurisdiction

Congress did not expressly list tribal governments in the NLRA. But the NLRB for 70 years regarded tribes as being exempt because they were considered instruments of the federal government.

That assumption vanished in 2004 when the D.C. Circuit Court of Appeals upheld an NLRB unfair labor practice ruling against the San Manuel Band of Mission Indians casino in San Bernardino, California.

“Although Congress has empowered the NLRB to bring legal action against private enterprises, it has never given the NLRB jurisdiction over tribes or tribal enterprises,” says Matthew Fletcher, a Michigan State University Law School professor and citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.

“Nonetheless, in 2004, the NLRB began asserting jurisdiction over tribal labor practices. This has created a patchwork of uncertainty and a dilution of sovereignty.”

Judges in the San Manuel case said the NLRB exemption only applied to “purely intramural” matters of tribal governance. They said the San Manuel casino constituted a commercial enterprise with “activities involving non-Indians,” meaning customers and employees. NLRB jurisdiction, the judges ruled, also did not violate a treaty agreement.

“Where the business employs primarily non-Native American employees and caters to primarily non-Native American customers, there is no basis for depriving employees of their rights and protections under the National Labor Relations Act,” AFL-CIO’s Samuel says.

The NLRB caught tribal leaders off their guard. They were assured the NLRB would acknowledge the congressional intent of the Indian Gaming Regulatory Act (IGRA) of 1988 that Indian casinos operate as government enterprises funding essential services to tribal citizens.

Tribal attorneys contend the ethnicity of workers and customers should be of no legal consequence if the business is a tribal government operation.

The D.C. Circuit ruling essentially gave the NLRB freedom to look at its jurisdiction over tribal labor disputes on a case-by-case basis.

Michigan’s 6th Circuit in June cited the San Manuel case in upholding an NLRB ruling against the Little River Band of Ottawa Indians, owners of the Little River Resort Casino in Manistee, Michigan.

A different 6th Circuit panel a month later also upheld an NLRB ruling against the Saginaw Chippewa’s Soaring Eagle resort. But a dissenting judge noted that a pertinent Supreme Court ruling in Michigan v. Bay Mills Indian Community was not considered in the panel’s deliberations, leaving the issue ripe for an en banc review by circuit judges.

Dissension among 6th Circuit judges, a 2002 10th Circuit ruling against NLRB jurisdiction over the San Juan Pueblo in New Mexico and two contradictory rulings by the NLRB regarding its jurisdiction in a worker dispute at the Chickasaw Nation’s WinStar Casino in Oklahoma leaves the issue of tribal/labor relations in a sea of uncertainty.

In addition to the recent rulings, a 10th Circuit judge in 2011 blocked a Teamsters effort to organize 300 WinStar blackjack dealers.

“What is becoming clear is that nothing is settled, and this issue is likely headed for the Supreme Court or a possible legislative ‘fix,’” writes Barnes & Thornburg attorney Keith Brodie.

The Supreme Court under the late Chief Justice William Rehnquist and current Chief Justice John Roberts has often ruled against tribal sovereignty. Rather than risk a high court ruling, Indian leaders are hoping for more favorable circuit court decisions or a congressional remedy.

Worker Rights vs. Tribal Sovereignty

Pomo Indian Gary Navarro, a slot attendant at the Graton Casino near San Francisco, testified against the Tribal Labor Sovereignty Act at a June hearing before the House Health, Employment, Labor and Pension Subcommittee.

“As a Native American I am strongly opposed to the idea that (in) the name of my heritage one of the most important rights Americans have—namely, the right to form a union and collectively bargain—will be taken away from thousands of people like me, who work in a native business,” said Navarro, an organizer for UNITE HERE, which represents workers at the tribal casino.

Navarro said union representation was the only method by which workers could battle back against sexual harassment and other alleged misconduct by Station Casinos, which manages the tribally owned casino.

“Exercising our right to organize turned out to be the only way to protect ourselves and our coworkers,” Navarro told committee members. “Please do not strip us of these rights.”

Most tribal governments have ordinances dealing with collective bargaining, workplace rules, grievances and other employee issues. Whether, as unions suggest, the TLROs are prohibitive to collective bargaining efforts is subject to debate. The failure of unions to organize most tribal casinos may be symptomatic of labor’s inability to compete with the private sector on wages, benefits and working conditions.

Chairman Rodney Butler of the Mashantucket Pequot Nation in Connecticut testified in favor of the draft sovereignty act, noting that the UAW utilized tribal labor laws in successfully organizing employees at the tribe’s Foxwoods Casino Resort.

“I think both the tribe and UAW believe this agreement has worked well for both sides,” Butler says.

The International Union of Operating Engineers, International Association of Firefighters and the United Food and Commercial Workers also have collective bargaining agreements with the Pequots.

In California, the Communication Workers of America (CWA) organized employees at casinos owned by San Manuel and the Viejas Band of Kumeyaay Indians. The Viejas workers earlier this year voted out CWA for another union.

Tribes contend they provide wages and benefits competitive with the hospitality industry.

“The Viejas band treats its employees well because it is the right thing to do, not because it has been compelled to do so by some federal or state law,” tribal Chairman Robert Welch says.

UNITE HERE contends casino workers with a collective bargaining agreement earn $7,558 more per year than comparable non-union employees. Tribes dispute the survey findings.

UAW and Teamsters have failed on several occasions to organize Soaring Eagle workers.

“Conditions as far as wages go were not that far out of line,” Teamsters organizer Ed Morin told Reuters, “but work conditions were out of line.”

Soaring Eagle workers complained of overly harsh disciplinary decisions, unfair hiring practices and said tribal members received favorable treatment, Morin says.

Off-Reservation Enterprises A Different Matter

Most tribes adhere to federal workplace mandates, such as the Fair Labor Standards Act, Occupational Safety and Health Act, Employee Retirement Income Security Act, Family and Medical Leave Act and the Age Discrimination in Employment Act.

Tribal leaders are particularly concerned that union organizers operating on reservation lands could prove disruptive to tribal governance.

“Labor unions by their nature are political animals,” Guest says. “You unleash that on the reservation without the tribes having the ability to regulate it or shut it down and you expose the tribe to a non-Indian entity on their reservation able to affect the politics on the reservation.

“You have bad actors. You have unions that are more aggressive than others. Tribes embrace some unions with open arms. But there are those unions that seem to want to get into conflict and create disputes.”

Pending resolution of the court cases and potential congressional legislation, unions will continue their efforts to organize tribal casino workers.

“Immediately after 2004 we didn’t really see a lot of activity,” Martin says. “It seems like the last two to three years things have begun to pick up.

“There been some activity in California, a traditional labor state.  There’s been activity in New Mexico, not necessarily with organizing but other workplace issues. The activity in Michigan has been ongoing.”

“You’ll see union pressure wherever you have a concentration of Indian casinos and a fistful of employees, particularly in regions that are traditionally union-friendly—the West Coast, Michigan and the Northeast,” says John Tahsuda, a Kiowa-Comanche and principal in Navigators Global.

“Wherever a non-union worker is dissatisfied,” Guest predicts, “they may hear about the San Manuel case and what’s going on in the 6th Circuit and say to themselves, ‘Well, I’m going to start a union. I’m going to get the workers organized.’”

Dave Palermo is an award-winning metropolitan newspaper reporter. He has written about American Indian governments for more than 20 years, working as an advocate for several tribes and tribal associations. He also has co-authored books on gambling and gambling law. He can be reached at [email protected].