by Kevin J. Allis, Attorney at Law
The applicability of federal labor law to tribal governments and their business enterprises has become a
controversial and much discussed issue. As tribal enterprises have become more pronounced in the non-Indian world, federal and state governments have taken measures to assert more control.
In tandem with federal and state governments, the courts have also acknowledged and addressed the proliferation of tribal enterprises. The courts have recognized that it is inherently unfair to treat growing commercial tribal entities engaging in business with those outside the reservation differently from competing non-Indian businesses. The application of this presumption has resulted in tribes and their commercial enterprises not being excluded from federal labor and employment laws despite such statutes being silent as to their applicability to Native American governments and commercial enterprises.
The most recent example of this notion that tribal commercial enterprises are subject to federal labor laws is the United States District Court of Appeal's upholding of the National Labor Relations Board's (the “Board”) decision in San Manuel Indian Bingo & Casino. Prior to this ruling, the Board had long recognized that the National Labor Relations Act (the “Act”), which neither expressly applies to Indian tribes nor exempts them from its coverage, does not apply to tribal enterprises that are owned by the tribe, directed by tribal government, and located on reservation lands. However, in San Manuel Indian Bingo & Casino, the Board changed its mind and decided that it has jurisdiction over Native American owned and operated commercial enterprises located on reservation lands.
As a result of the Board's ruling, many tribal enterprises, located on and off the reservation, may soon encounter union organizers. Many of these encounters will be new to the enterprises' human resources departments and frontline supervisors. There are many important issues a Native American employer must consider before a union begins knocking at the front door.
Preventive Maintenance: Nothing Beats Fair Treatment and Good Wages and Benefits
Probably the single most important factor in keeping the workplace union-free is a comfortable workplace with competitive wages and benefits. It is often management's poor employee relations that a union organizing campaign will exploit. Low morale caused by poor communications, bad working conditions, low wages and benefits, and the failure to address grievances often form the catalyst for union organization.
Often, employees that engage in such organizing efforts do so to quench a desire to retaliate against management for real or imagined wrongs. Such efforts will usually involve a group of employees that feel a safety in numbers fulfilling a sense of “belonging” that the employer failed to satisfy. Usually in these types of cases, the employer has nobody to blame but itself for the arrival of a union organizing campaign.
An employer should utilize some type of internal program tailored to foster an increase in “belongingness” to enhance high employee moral. Supervisors should routinely talk with subordinates about individual performance, progress, employer goals, and personal interests. Voiced concerns and problems should be addressed openly and expeditiously. If a problem or complaint cannot be handled immediately, advise the employee that the concern will be forwarded to the proper authority, and routinely follow-up on its progress.
Regularly provide information about expected changes within the company, department, or job function. Never allow employees to be surprised by such changes. Finally, let your employees know how important they are to the company's success. By meeting employee needs through the work
environment, there will be no reason for employees to seek such needs through collective bargaining.
Discovery of Union Activity
Early discovery of union organizing attempts is important. It is usually within the dawn of such organizing efforts that errors are made that could result in unwanted litigation. When faced with union organizing efforts, employees, especially supervisors, should be trained to immediately refer union organizers to the human resources manager. This should be followed by his or her own call to the HR
manager advising of the discovered activity. The employer should then take steps to give its views on unionization, and inform employees why they don't need a union. Finally, the employer should have in place a “No-solicitation” policy that is consistently enforced.
Native American employers should be on the lookout for organizational efforts. An early indictor of union activity often may be employee vocabulary that includes terms such as “concerted activity,” “economic pressure,” “duty of bargain,” and “right of representation.” Other signs may include employees meeting at times and places out of the ordinary, a change in the nature and frequency of complaints, complaints made by a delegation of employees instead of individually, and employees or strangers showing an unusual curiosity about company affairs and policies.
Management and Frontline Supervisory Conduct. The proper conduct of the employer's frontline supervisors and management is not only critical to the initiation of a successful union avoidance strategy, but also to avoid litigation. Supervisors are generally presumed to be acting and speaking for the employer, and are therefore considered agents of the employer. Often their conduct will bind an employer for the purposes of committing an unfair labor practice.
Supervisors should be instructed not to look at, or accept, any list of employees or signed authorization cards (“card majority”) from union organizers. Under the Act, an employer is permitted, whenever confronted with a card majority and demand for recognition, to refuse that demand and force the union, as a condition of securing bargaining rights, to demonstrate majority support in a secret-ballot election. Employers have a duty to bargain not only when the union wins a Board certified election, but in some circumstances when the union has other “convincing evidence” of majority support. Signed authorization cards are recognized to be a reliable indicator of employee preferences. The Act gives exclusive representation status to a union “designated or selected” by a majority of employees in a unit, with no limitation on the manner of the designation or selection. Therefore, the supervisor's review of signed employee authorization cards, or lists of employees, may impute knowledge of the union's majority support upon the employer. As such, the employer may become obligated to bargain in good faith with the union over employee wages, benefits, and working conditions. However, by refusing the demand for recognition, and forcing an election, the employer is given time to express its views on unionization to employees in an attempt to avoid unionization.
The Act makes it illegal for an employer to interfere with, restrain, or coerce employees in the exercise of their rights to organize, bargain collectively, and engage in peaceful concerted activities. Employers may not favor any one union over another, discriminate in its hiring, firing, or working conditions to encourage or discourage union membership, grant or withhold benefits, or refuse to bargain with a union upon a showing of majority support.
Since an employer manifests its conduct through its management, supervisory threats of reprisal for supporting or voting for a union, surveillance of employees in their union activities, questioning employees concerning their union support and membership, and discipline of employees for engaging in concerted activities, are illegal acts that usually result in the employer having to defend against an unfair labor practice complaint. Each one of these acts chills the employee's right to organize, form, or support labor organizations in their attempt to improve working conditions, wages, and benefits.
However, nothing in the Act prevents the employer from conducting business as usual. An employer may make employment decisions, such as discipline and discharge, job assignments, shift changes, and layoffs so long as the action follows customary personnel policy and practice, and is done without regard to an employee's interest in the union.
Getting the Word Out: Employer's Views Expressed to Employees. The Act, consistent with the First Amendment, does not prevent an employer from speaking its mind on the merits of unionization provided that the communication is free from coercion. Both the Board and the courts will strike a balance between the employer and employee interests in free and full disclosure, and the employee interest in an uncoerced decision on collective bargaining.
An employer is free to communicate to its employees any of its general views about unionism, or any of its specific views about a particular union, so long as the communications do not contain a threat of reprisal, or promise of a benefit. Employees can be informed that they don't have to sign authorization cards, and if they do, they are not bound to vote for the union.
The employer may even make a predication as to the precise effects it believes unionization will have on the company. Such predictions could include possible layoffs or plant closings. However, these predictions must be carefully phrased, based on objective facts, and refer to consequences beyond the employer's ability to avoid. For example, an employer, upon reasonable belief, may inform employees that layoffs are possible because it is likely that some of its primary customers will cease to do business with the company because of the customer's policy not to deal with unionized organizations.
Employers are free to inform employees that their current pay and benefits, and other employment conditions are better than most unionized companies. Employees can be reminded of the advantages of dealing directly with management without the interference of outsiders or the procedures outlined in the collective bargaining agreement. The employer can state that the union's approach to representation will eliminate informal, direct, and flexible dealings between the employer and employee. Promotions, transfers and job assignments, discipline and discharge, layoffs, and work schedules are all matters that will be governed by the collective bargaining agreement that undoubtedly will eliminate the existing
flexible employee/employer relationship.
Employees can be informed that the union cannot guarantee job security, or that the current wages and benefits will be the same in a collective bargaining agreement. In fact, they should be informed that there is no requirement that an agreement has to be reached between the employer and union, on any matter. The costs associated with union membership should be communicated. Such costs will undoubtedly include union dues, fines, union assessments, and loss of income due to strikes. Employees can be told that during economic strikes, which are strikes concerning wages and benefits, the employer is not required to pay employees involved in the strike, can terminate their benefits, and participating employees often cannot collect unemployment. They should also be informed that federal law allows employers to permanently replace those employees participating in an “economic” strike.
No-Solicitation Policies. Although employees have a legal right to discuss unionization, argue, and solicit others, the Act does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. However, such rules, in most cases, must be limited to “working time,” that time actually spent performing job duties. Periods outside “working time” are considered the employees' time to use without unreasonable restraint. Such times would include lunch breaks, rest periods, and before and after work. Rules restraining employee communication during these times are illegal. Also, a no-solicitation rule is illegal if it applies to non-working time in areas where no work is performed, such as break rooms, cafeterias, or employee parking lots. However, under most circumstances, such a policy could limit the distribution of unionization material within areas where work is being performed.
There is no obligation on the employer to allow non-employee solicitors to distribute union materials on the employer's private property. Non-employee organizers can be denied access to the employer's property. Additionally, the no-solicitation policy can limit access to the interior of the workplace for “off-duty” employees. However, this policy must be disseminated to all employees, and must apply to all “off-duty” employee access for any purpose.
The wearing of buttons and messages is protected activity, but not absolute. If an employer can show that a certain button or message, worn on a uniform or hat, would be disruptive or controversial, thereby interfering with work performance, or negatively impacting a certain public image that the employer seeks to protect, a rule prohibiting the buttons or messages is valid. An example would include the wearing of pro or anti abortion pins, buttons, or messages that often fuel emotional and very disruptive reactions.
The employer should always be mindful to ensure that policies limiting solicitations are consistently enforced. Inconsistent enforcement of a no-solicitation policy is likely to render it meaningless in an unfair labor practice complaint. If such a policy exists, the employer must be willing to enforce it. To legally and effectively stop the distribution of union related materials, the employer must also be willing to prohibit the distribution of materials relating to charitable or community solicitations.
Without question the impact of the Board ruling in the San Manuel Indian Bingo & Casino matter will present new challenges for all tribally owned and operated enterprises. Union avoidance can, and must begin before the union begins knocking on the door. Treating the workforce fairly, coupled with the payment of good wages and benefits, is the most effective tool when combating organizing efforts. But at times this may not be enough. If that is the case, the employer must ensure that management is properly trained regarding union organizing efforts, employees are provided important information on unionization and the employer's view, and a no-solicitation policy, already in place, is consistently enforced.
Kevin J. Allis is a tribal member of the Forest County Potawatomi Community. He is an attorney that practices labor and employment law on the management side. He can be reached at (410) 576-0675 or firstname.lastname@example.org