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May 30, 2012

Three recent unfair labor practice cases leveled against Indian nation casinos by the National Labor Relations Board (NLRB) have gone in three different directions. There may be ominous implications.

First, there was the complaint against the WinStar World Casino, owned and operated by the Chickasaw Nation, filed before the NLRB's Regional Office in Oklahoma. The NLRB charged casino managers with violating the National Labor Relations Act (NLRA) by disciplining employees who engaged in union organizing activities. The Chickasaw Nation sued the NLRB in federal court and secured an injunction to stop the case on the ground that the NLRB has no jurisdiction over labor relations within the Chickasaw Nation's territory. The NLRB has appealed that decision to the U.S. Court of Appeals for the Tenth Circuit. It argues that federal courts have no authority to stop an NLRB unfair labor practice case until after the case has proceeded to final decision by the full Board. (Under a provision of the NLRA, parties can appeal final Board decisions to the federal courts of appeals.

Second, there was the complaint against the Soaring Eagle Casino, owned and operated by the Saginaw Chippewa Tribe, filed before the NLRB's Regional Office in Michigan. In that case, the NLRB charged the casino with violating the NLRA when it fired an employee for soliciting union support in violation of the casino's non-solicitation policy. The Tribe sued the NLRB in federal court just like the Chickasaw Nation. This time, however, the federal court declined to hear the case. It said the Tribe needed to make all of its arguments to the Board before proceeding to federal court. The unfair labor practice case then went to hearing before an Administrative Law Judge (ALJ), and the casino lost. The ALJ ordered the casino to reinstate the employee and pay her back wages. The ALJ also ordered the casino to post notices to employees announcing their rights under the NLRA, stating that it had violated the NLRA, and announcing that it would revoke its non-solicitation policy. The casino has now appealed the ALJ's decision to the full Board in Washington, D.C. It argues that the NLRB has no jurisdiction over employment relations at its casino

Third, there was the complaint against the Fort McDowell Casino, owned and operated by the Fort McDowell Yavapai Nation. In that case, filed before the NLRB's Regional Office in Arizona last February, the NLRB claimed that the casino maintained work rules that infringed on the ability of employees to engage in concerted activity in violation of the NLRA. Before the case proceeded to hearing before the ALJ, the casino settled with the NLRB. Under the settlement agreement on file with the NLRB's Regional Office, the casino must post the following notice:

Posted Pursuant to a Settlement Agreement
Approved by a Regional Director of the
National Labor Relations Board
An Agency of the United States Government

Federal Law Gives You the Right To:

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

We will not do anything that interferes with these rights. . . .

So we have three similar cases all going in three different directions. Why? Here's a stab at a partial explanation.

Federal case law in Oklahoma (as well as New Mexico, Colorado, and Wyoming) favors tribal sovereignty when a federal law, like the NLRA, is silent about its application to Indian nations or their enterprises. Federal case law in Arizona (as well as California, Oregon, Washington, Idaho, and Montana) is far less favorable. This is why the Chickasaw Nation has a head of steam, and why Fort McDowell may have been wise to settle. What about the Saginaw Chippewa Tribe and its Soaring Eagle Casino in Michigan? The federal courts in Michigan have yet to address the question. Of course, the San Manuel decision of 2007 still stands, but it is not the final word on the question as the Chickasaw Nation has now shown.

When cases go in different directions in the federal courts, the Supreme Court is most primed to sort things out. Tribal sovereignty is facing off against federal authority in these cases, and we are on tender ground.

These issues are explored in Labor and Employment Law in Indian Country, jointly published by Drummond Woodsum and the Native American Rights Fund.
Information on a fourth, slightly different, case pending before the full NLRB, involving a charge that the labor laws of the Little River Band of Ottawa Indians are unfair labor practices because they vary from the NLRA, can be found on the NLRB website.

Related Professional

  • S. Campbell Badger
  • Kaighn Smith

  • Related Practice Areas

  • Tribal Nations Practice Group

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