Overruling 30 years of precedent, the National Labor Relations Board has concluded that tribal governments and their enterprises are subject to federal labor law.
In a 3-1 decision made public yesterday, the board asserted
jurisdiction in a dispute between a California tribe
and a labor union. By doing so, the majority
reversed long-standing precedent that tribes, as sovereign
governments, are outside the scope of the federal
National Labor Relations Act.
The law doesn't mention tribes at all, the board acknowledged.
But the majority's opinion, signed by chairman Robert J. Battista,
a Republican, and two Democrats, argues
that tribes have opened themselves up to the board's authority.
"As tribal businesses prosper, they become significant employers
of non-Indians and serious competitors with non-Indian owned businesses,"
the decision dated May 28 stated.
"When Indian tribes participate in the national
economy in commercial enterprises, when they employ
substantial numbers of non-Indians, and when their businesses
cater to non-Indian clients and customers, the
tribes affect interstate commerce in a significant way."
"When the Indian tribes act in this manner, the special
attributes of their sovereignty are not implicated," the majority concluded.
The decision has widespread implications because it reverses
a 28-year-old holding that on-reservation tribal
enterprises are exempt from the law. It also expands the scope
of a 12-year-old case in which the board asserted
jurisdiction over an off-reservation tribal enterprise.
The far-reaching nature of the decision drew criticism
from board member Peter C. Schaumber. In a lengthy
dissent, the former federal prosecutor, a Republican,
accused the majority of intervening simply because
tribes have become wealthy.
"In response to this new 'prosperity,' the
majority undertakes a rebalancing of competing policy
interests and finds that the Act extends to on-reservation
tribal enterprises," he wrote.
He added that "application of the Act to the tribe and its
wholly owned and operated casino on reservation land
would directly impinge numerous important aspects of
retained tribal sovereignty."
Along with a companion ruling involving a health corporation
operated and owned by 58 Alaska tribes, the board set new
guidelines for determining jurisdiction in
tribal labor disputes. The National Labor Relations Act
will apply to tribes unless it affects
"exclusive rights of self-government in purely intramural
matters" or abrogates treaty rights.
This factor weighed against the San Manuel Band because
the tribe, like dozens of others throughout
the nation, doesn't have a treaty.
The board will also look at the tribal enterprise to
determine jurisdiction "on a case-by-case basis." Considerations
include the nature of the enterprise -- commercial or
governmental -- and whether the business employs or caters
to non-Indians.
The board did not rule on the merits of the dispute,
which was brought against the San Manuel Band by the Hotel Employees and Restaurant
Employees Union. Neither the tribe nor the union responded
to requests for comment yesterday.
In recent months,
the union's members have waged a very public campaign against
California tribes they accuse of not allowing
employees to organize. Their tactics, including protests
outside a tribal casino,
prompted one tribal leader to compare a priest who supported
the union to a "common thug."
Two years ago, the board lost a major decision in the 10th
Circuit Court of Appeals. The court, by a 9-1 vote, ruled that San Juan
Pueblo in New Mexico, which doesn't have a treaty, could
enact its own law banning forced unionism.
In his dissent, Schaumber pointed to this ruling, which
the board did not appeal to the U.S. Supreme Court. But
the majority said that case was based on a different
set of facts.
The majority also pointed to a recent 9th Circuit Court of Appeals
decision involving the Rumsey Indian Rancheria's health
corporation. In that case, the court said the tribe's
sovereignty wasn't at issue because most of the health employees
were non-Indian and half of the patients were non-Indian.
National Labor Review Board Decisions:
San Manuel Indian Bingo and Casino |
Yukon Kuskokwim Health Corporation
Federal Court Decisions:
NAT'L
LABOR RELATIONS BD v. SAN JUAN PUEBLO (10th
Circuit January 11, 2002) |
NAT'L
LABOR RELATIONS BD. v. CHAPA DE INDIAN HEALTH PROGRAM, INC
(9th Ciruit January 16, 2003)
Relevant Links:
San Manuel Indian Bingo and Casino - http://www.sanmanuel.com
Hotel Employees and Restaurant Employees Union - http://www.hereunion.org
Federal labor board expands jurisdiction over tribes
Friday, June 4, 2004
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