2/15/08

Tribal lawyers re-arm in unrelenting Casino War

When dealers at one of the world's largest casinos voted last November to form a union under federal labor laws, the news reverberated throughout Indian country. Table game dealers at the Mashantucket Pequot Tribal Nation's Foxwoods Resort Casino voted 1,289 to 852 on Nov. 24 in favor of forming a United Auto Workers union, bringing federally-regulated collective bargaining onto tribal lands in the first union election at a tribal casino overseen by the National Labor Relations Board.

Throughout the months of union organizing, the tribal nation asked the UAW and employees to submit their petition to unionize under the tribe's own labor laws, maintaining that the NLRB does not have jurisdiction on sovereign Indian land. The NLRB, which heard the tribe's appeals, rejected that argument, citing a federal appeals court ruling last February that a casino owned by the San Manuel Band of Mission Indians in California was subject to the National Labor Relations Act.

Since the Foxwoods vote, many tribes are looking for ways to strengthen their labor laws. Many have sought information from the Mashantucket Pequots, according to Jackson King, the nation's attorney.

"A lot of tribes are looking for examples of tribal labor laws and we've been happy to provide them. Many of our employment laws have been on the books for years. The NLRB reversal of its position on how this act applies to tribes has prompted a lot of tribes to look for information on tribal labor law and employment laws in general," King said.

The Mashantucket Pequots have appealed the Foxwoods vote and promised to take its jurisdictional challenge through the courts. Although no one can predict the result of the nation's legal challenge, the UAW and other unions are taking the Foxwoods vote as a signal to expand their organizing efforts. With 670,000 employees and annual revenues of close to $26 billion, the tribal gaming industry is an irresistible target for unionization. In Massachusetts, for instance, Robert Haynes, president of the 400,000 member Massachusetts AFL-CIO, recently announced that the labor organization will be lobbying lawmakers to support Gov. Deval Patrick's proposal for three casinos in the state.

Without conceding that the National Labor Relations Act applies to sovereign tribal nations, most tribal attorneys are encouraging the nations to prepare to deal with unionizing efforts until the issue is settled in the courts - a process that will likely take years.

Jana McKeag is president of Lowry Strategies and a government affairs consultant to VCAT, LLC. McKeag, a member of the Cherokee Nation of Oklahoma, views the labor movement on Indian lands as "devastating to tribal sovereignty."

Tribal casinos are tantamount to state lotteries, which are governmental activities used to provide funding for services to citizens of the state, McKeag said, pointing legislative solutions to the "increasing infringement on tribal sovereignty by labor unions," such as the Tribal Sovereignty Act of 2007.

"Similar legislation introduced in the 109th session by U.S. Rep. J.D. Hayworth, R-Ariz., was unfairly derided as an attempt to drive a political wedge between tribes, congressional Democrats and their union supporters," McKeag said, but "union infringement on tribal sovereignty cannot be politicized. This matter is about preserving and protecting our most valuable asset: our unique status as sovereign nations."

Attorneys at Dorsey and Whitney have been advising their tribal clients in Central and Northern Minnesota, Iowa, Nebraska and Michigan on labor and employment matters with an eye toward union avoidance.

But the best way to defeat unionizing efforts is ''by heading them off before they begin, rather than attempting to defend against an already active campaign,'' the attorneys recently wrote in an article posted on the firm's Web site at www.dorsey.com.

"In many cases, tribal employers have the advantage of being able to provide wages and benefits as good as [and frequently better than] those available in the surrounding labor market. Becoming or remaining the 'employer of choice' is the most effective defense against union organizing. Implementation of a fair and accessible grievance process, encouraging direct communication between management and employees, and giving employees opportunities to participate in workplace consensus-building and workplace decision-making also serve as effective deterrents to union organizing and often align with traditions of tribal sovereignty and decision-making," the attorneys wrote.

Less than a month after the Foxwoods vote, workers at the Soaring Eagle Casino & Resort in Michigan voted by more than 2 to 1 against forming a Teamsters union under federal law.

Katherine Tierney, a Saginaw Chippewa attorney, told Indian Country Today that the tribe is ''doing nothing'' about the possibility of other employees union organizing.

"If our workers wish to unionize, we're going to allow the process to go forward," Tierney said.

She dismissed the idea that labor unions under federal regulation threaten tribal sovereignty.

"I think tribes differ on this issue. A lot of tribes, particularly in the gaming area, have as a matter of compacts agreed to allow unionization, so for anyone to say its an inherent violation of sovereignty are forgetting the fact that by agreement tribes have said that can occur," Tierney said.

(indiancountry.com)

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