"The National Labor Relations Board (NLRB) has been intruding on tribal sovereignty for several years, by asserting authority over businesses owned and operated by tribal governments, including those located on reservations. And it’s poised to strike yet another blow. On January 31, 2012, the NLRB will begin requiring employers subject to the National Labor Relations Act (NLRA) to post a notice informing employees of their NLRA rights. The NLRB’s intent for the rule to apply to tribal businesses is implied, given its position that it has authority over them.

Until now, tribal businesses could largely avoid the question of the NLRB’s authority over them (or lack thereof), unless they became the target of union organizers. That will no longer be the case. It remains arguable that the NLRB lacks authority over tribal businesses, although recent cases make that position more tenuous. But as a practical matter, when the new notice-posting rule takes effect, tribal businesses will be directly faced with a choice whether to comply with the NLRB’s directive or not. And there will be risks either way.

On one hand, complying with the new rule by posting the notice could pose consequences for tribal sovereignty. A tribal business that posts the notice could be viewed as conceding the NLRB’s authority over it, something which many tribal businesses have not conceded to date. Posting the notice may also prompt employees to file NLRB charges against a tribal business that they would not otherwise have filed."

Get the Story:
Chloe Thompson: New NLRB Rule Presents an Unwelcome Choice for Tribal Businesses (Indian Country Today 10/22)