Opinion: Indian gaming changed everything in labor law equation

Monday, September 6, 2010  

"Indian gaming changed everything in the labor law equation. In San Manuel Indian Bingo and Casino (2004), and later affirmed in San Manuel Indian Bingo and Casino v. NLRB (D.C. Cir. 2007), the NLRB exercised jurisdiction for the first time over an Indian-owned/controlled commercial enterprise operating on Indian land. The NLRB found – and a federal circuit court of appeals (one level below the United States Supreme Court) affirmed – that the Indian casino was subject to NLRB jurisdiction because it was a commercial enterprise, employed non-Indians, and catered to non-Indians. The NLRB expressly overruled its prior decisions in Fort Apache and Southern Indian, shifted the focus from the location and control of the business to the nature of business, rejected the “governmental entity” exception, and rejected the band’s “sovereign nation” defenses.

Notably, the San Manuel case arose in the context of two competing unions trying to organize the same casino employees under the band’s Tribal Labor Relations Ordinance. When one union prevailed in its efforts to organize the casino employees under the TLRO, the losing union did not quit. It invoked the jurisdiction of the NLRB.

The NLRB has applied the same analysis to every subsequent Indian country case since San Manuel. For example, the NLRB’s general counsel found that federal labor law pre-empted the tribe’s TLRO in Chukchansi Gold Resort & Casino (2005). The same result occurred in Foxwoods Resort Casino (2007), Soaring Eagle Casino & Resort (2007), Mashantucket Pequot Gaming Enterprise (2008), and just recently, in NLRB v. Fortune Bay Resort Casino (2010), all despite the existence of Tribal Labor Relations Ordinances.

Regardless of what unions may tell tribal Leaders, unions are not bound by Tribal Labor Relations Ordinances. That is because federal labor law gives labor law “rights” to employees, not unions, which means a union cannot give away – by contract or handshake – an employee’s right to take organizing, recognition, or bargaining issues to the NLRB. So if a union “promises” to organize or bargain under a TLRO, the union may do so as long as it gets what it wants under the TLRO, but if it does not get what it wants, it can invoke the employees’ legal rights under federal labor law to obtain NLRB jurisdiction. The United Food and Commercial Workers Union just proved that point in a second Mashantucket Pequot case at Foxwoods casino."

Get the Story:
Steven D. Wheeless: Are unions bound by tribal law when organizing on tribal lands? (Indian Country Today 9/6)