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Mashantucket Pequots to Appeal NLRB Union Certification

July 28, 2008

By Gale Courey Toensing, Indian Country Today, Oneida, N.Y.

Jul. 23–WASHINGTON — The Mashantucket Pequot Tribal Nation has promised to continue its fight for the legal right to exercise tribal sovereignty over gaming at Foxwoods Resort & Casino following the certification of a labor union under federal law rather than tribal law.

National Labor Relations Board Chairman Peter Schaumber and board member Wilma Liebman issued a unanimous decision June 30 upholding and certifying an election at Foxwoods last November in which poker dealers voted 1,289 — 852 to form a United Auto Workers union under the National Labor Relations Act.

Jackson King, the tribal nation’s general counsel, promised to appeal.

“The tribe plans to appeal all aspects of the case to the U.S. Court of Appeals,” he said. “It is the long-standing policy of the United States to encourage and support tribal self-government. Mashantucket Pequot laws provide a fair process for employees to select union representation if they so desire. We continue to believe that tribal law should apply in these matters. The union could already have a contract by now if they had followed tribal law.”

The tribal nation has maintained from the beginning of the unionization process that the federal labor law does not apply on sovereign tribal land. The tribe appealed the union vote both on jurisdictional and procedural grounds, but the NLRB rejected the nation’s claim of sovereign authority.

While the issue of tribal sovereignty is not addressed in the latest ruling, it is at the heart of the labor issue. And because of its national implication, the Mashantucket case has grabbed the attention of tribal nations — and unions — all over Indian country.

With a certified election, the UAW can now demand that Foxwoods negotiate a contract on behalf of nearly 3,000 Foxwoods employees.

Foxwoods workers were jubilant and called for bargaining to begin immediately.

“We voted, we won, we’ve been certified,” Steve Peloso, a 16-year veteran dealer at Foxwoods, said in a press release issued by the UAW. “It’s way past time for Foxwoods to come to the table and work with us on a fair contract.”

Bob Madore, director of UAW Region 91, which includes Connecticut, other New England states, New York City and Puerto Rico, said it’s time for Foxwoods to negotiate.

“Foxwoods Casino is a very successful business that has made a significant contribution to our community and our state. Foxwoods workers have decided to form a union so they can talk about how to share in the success they helped to create. Workers made their decision last November, and the labor board has now issued its final decision. There’s no excuse for further delay,” he said in the press release.

But the tribe has said it will not negotiate with the union under the federal law. The refusal is the first step in a circuitous process that will eventually lead to a court appeal.

“There’s no judicial review at this stage,” said Richard Hankins of the Atlanta firm of Kilpatrick Stockton. Hankins is a labor attorney who represents the nation.

After the union has demanded bargaining and the employer has declined, the union typically files an unfair labor practice complaint with the NLRB regional office in Hartford based on failure to bargain. The tribe’s defense would be improper certification. The labor board would then typically grant a summary judgment finding the employer guilty of unfair labor practice to decline to bargain. That’s when the issue would go to an appeals court, Hankins said.

He acknowledged the importance of the case: “As a lawyer who is learning in the last year about Native American affairs, I can tell you that my colleagues in the traditional labor world don’t understand how large of an issue this is to Indian country. They don’t understand why it is such an affront to Native American expectations of self-government.”

The issues of Indian preference, sovereign immunity, right to work laws, and the authority of tribal councils and other governmental entities to make laws that govern the relationship between the tribal government and employees will all be litigated in this case and others, Hankins predicted.

“I think that particularly in this context, the labor board and the unions don’t grasp how impractical it is to suggest that you can separate out the gaming enterprise from the rest of the governmental operations.”

The UAW press release referenced the San Manuel Band of Mission Indians (erroneously referred to as San Miguel) case in which a dispute between two unions ended in a NLRB 3 — 1 decision in March 2004. Federal labor law applied the case to employees at the band’s casino.

Schaumber, a Bush appointee who was designated chairman of the NLRB last March, wrote the dissenting opinion.

At the 33rd annual Federal Bar Association Indian law conference in Albuquerque, N.M., in early April, Schaumber said he was extremely disappointed when his colleagues overturned 30 years of precedent and subjected tribes to federal labor law, according to a report on www.indianz.com. He said the board was “turning a blind eye” towards retained tribal sovereignty and the principles of federal Indian law that protect them.

A former federal prosecutor, he said the 2004 ruling is now being expanded at the expense of tribes. “I will dissent in those decisions that expand San Manuel.”

The NLRB is supposed to consist of five members. In a kind of “Alice in Wonderland” way of thinking, a footnote in the ruling explains that Schaumber, Liebman and board members Peter Kirsanow and Dennis Walsh (the fifth member was not mentioned) delegated to Schaumber, Liebman and Kirsanow as a three-member group all of the board’s power last December.

Although the three-member group doesn’t actually exist because Kirsanow’s term ended in December, the note explains that Schaumber and Liebman constitute a quorum of the three-member group and, therefore, have the authority to issue decisions.

The two-member quorum of the nonexistent three-member board is being challenged by a number of parties and Mashantucket is likely to challenge it, too, Hankins said.

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Copyright (c) 2008, Indian Country Today, Oneida, N.Y.

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