Law Article: Uncertainty abounds with federal labor law at casinos

The last two weeks have seen a number of developments related to the NLRB’s ability to claim jurisdiction over Indian tribes and their operations. What is becoming clear is that nothing is settled, and this issue is likely headed for the Supreme Court or a possible legislative “fix.”

The first development was the NLRB’s June 4 decision in Chickasaw Nation d/b/a Winstar Casino, 362 NLRB No. 109. This unfair labor practice case was filed by the Teamsters and challenged whether the Chickasaw Nation, which operates the WinStar World Casino in Oklahoma, is subject to the NLRB’s jurisdiction. An earlier panel of the NLRB had said yes. However, the Supreme Court’s decision inNoel Canning resulted in the vacating of that ruling.

For the Chickasaw Nation the second time proved a charm. In the most recent case, a different NLRB panel declined jurisdiction over the Chickasaw Nation. Applying the NLRB’s decision in San Manuel Indiana Bingo & Casino, 341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. Cir. 2007), the NLRB on the second go around determined that although application of the NLRA to the to the Chicksaw Nation would advance the policies of the NLRA, the Board was constrained to assert its jurisdiction because to do so would abrogate a specific treaty right. In San Manuel, the Board determined that the NLRA is a statute of “general application” that applies to Indian tribes, unless (1) the law “touch[ed] exclusive rights of self-government in purely intramural matters”; (2) the application of the law would abrogate treaty rights; or (3) there was “proof” in the statutory language or legislative history that Congress did not intend the Act to apply to Indian tribes. In this case, the Board found that application of the law would, under the proper rules of construction, abrogate rights secured to the tribe under two treaties entered into in 1830 and 1866.

The Board’s decision is contrary to two earlier cases decided underSan Manuel where the Board found jurisdiction over two Michigan Indian tribes, Little River Band of Ottawa Indians Tribal Government, 361 NLRB No. 45 (2014) and Soaring Eagle Casino & Resort, 361 NLRB No. 73 (2014). In fact, on June 8, only days after the NLRB’s Chickasawdecision, the Sixth Circuit Court of Appeals affirmed the NLRB in theLittle River Band case over a vigorous dissent by Sixth Circuit Judge David W. McKeague. This litigation also was spawned from as unfair labor practice charge filed by the Teamsters which alleged that the tribe’s 2005 Fair Supplement Practices Code, which regulated the right to organize and engage in collective bargaining, violated the NLRA. As set forth above, the NLRB asserted jurisdiction and agreed. And now the Sixth Circuit has affirmed that ruling.