NLRB JUDGE FINDS JURISDICTION/UNFAIR LABOR PRACTICE AGAINST SOARING EAGLE CASINO RESORT
April 3, 2012
By decision dated March 26, 2012, an Administrative Law Judge found (1) that the Soaring Eagle Casino and Resort is subject to the National Labor Relations Act and (2) that the casino violated the NLRA by enforcing a non-solicitation policy against an employee who solicited union support from other employees. The casino is wholly owned by the Saginaw Chippewa Indian Tribe of Michigan. The employee was terminated for violating the policy.
According to the decision, the Tribe argued "that its treaties with the United States affirm its right of self-government, which includes the right to operate a casino on its reservation without interference by the Federal government." The ALJ rejected that argument. He applied a legal standard developed by the Ninth Circuit Court of Appeals, which presumes that a federal labor law of general application will apply to tribal enterprises unless (a) the law would interfere with "exclusive rights of self-government in purely intramural matters," (b) it would abrogate a specific treaty right, or (c) there is evidence that Congress intended not to apply the law to tribes or their enterprises. He then held that the operation of a casino fits none of those exceptions.
The decision orders the casino to reinstate the employee with back pay and to announce to employees that "The National Labor Relations Board has found that we violated Federal labor law . . . 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. . . ." (capitalization in the ALJ's order).
The Saginaw Chippewa Tribe earlier sued the NLRB in federal court to stop the proceeding, but the federal judge dismissed the case under the agency exhaustion doctrine. The casino may appeal the ALJ's decision to the National Labor Relations Board, and the ALJ's order cannot take effect while such an appeal is pending.
The law surrounding the application of the NLRA and other federal labor and employment laws to Indian nations or their enterprises is in a state of flux, presenting significant risks to tribal sovereignty. These and other issues are explored in the book, Labor and Employment Law in Indian Country, jointly published in 2011 by NARF and DrummondWoodsum. The Indian Nations Labor and Employment Group provides regular trainings on these and other matters affecting tribes and their enterprises.
For the ALJ's decision in the Soaring Eagle Casino and Resort case, click here.