Scott A. Wilson, Attorney at Law
It has been one year since the United States Court of Appeals for the District of Columbia (DC Circuit) upheld an earlier decision of the National Labor Relations Board (NLRB) ruling that the National Labor Relations Act (NLRA) applied to the casino operations of a tribal employer. Since the decision of the Court in San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (2007), union activity directed at tribal gaming employers has increased.
A well-publicized example of this was the NLRB election conducted among the dealers at Foxwoods Resort & Casino in Connecticut in November of 2007, where the dealers voted to become unionized. Foxwoods has disputed the election results contending, among other reasons, that the Board has no jurisdiction because of its tribal status. Ultimately the case will be heard by a different federal court of appeal than the DC circuit, which decided San Manuel. If there is a ruling involving Foxwoods that is contrary to San Manuel the issue could be decided by the U.S Supreme Court.
The issue of NLRB jurisdiction over Indian Country is still subject to court review, but in the meantime, the NLRB and its personnel in various regional offices around the country will continue to process any cases filed with them involving tribal casinos.
This presents a challenge for tribal employers who must now deal with employment law issues they have not faced in the past and which can often involve challenges to common workplace practices. Over the past ten years, there have been numerous decisions by the NLRB and reviewing courts that an employer's maintaining of overly broad work rules violates the Act.
Beginning with Lafayette Park Hotel, 326 NLRB No. 69 (1998), the NLRB set forth standards for interpreting work rules under the NLRA and held that “the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights.” Under this principle, the hotel's rule against “making false, vicious, profane or malicious statements” toward or concerning the hotel was found unlawful because it did not clearly define permissible conduct. Also, requiring employees to leave the hotel's premises immediately following a shift change had the effect of denying off-duty workers access to nonworking areas, such as the parking lot, to engage in concerted activity.
Since Lafayette Park Hotel, the NLRB has heard several other cases challenging handbook policies and work rules. See e.g., Claremont Resort and Spa 344 NLRB No. 105 (2005) (employees would reasonably read employer's rule prohibiting “negative conversations” about their managers as an unlawful prohibition on voicing complaints); Longs Drugs Stores California, Inc., 347 NLRB No. 45 (2006) (work rules against disclosure of confidential information deemed unlawful because employees would reasonably believe such work rules prohibit disclosure of employee wage rates).
Another recent case is Guardsmark LLC v. NLRB, 475 F.3d 369 (D.C.Cir. 2007). At issue before the Court in Guardsmark was a work rule that directed employees not to “fraternize on duty or off duty, date or become overly friendly with the client's employees or with co-employees.” The Court held that Guardsmark employees would reasonably believe that the work rule prohibited employees from discussing their terms and conditions of employment. The Court reasoned that the primary dictionary definition of “fraternize” is to participate in fraternal relationships and, therefore, the work rule unlawfully prohibited the discussion of terms and conditions of employment among employees in violation of the NLRA.
In a closely watched case involving an employer's email system, the Board, by only a 3 to 2 vote, rejected arguments by the employees that they had a right to use the company email for non-job related purposes involving solicitation of union support. The Guard Publishing Company, 351 NLRB No. 70 (2007). The Board found that an employer can prohibit this activity unless it has also allowed communications “of a similar character.”
Recommendations for Tribal Employers
The following practical recommendations should be considered:
• Perform a yearly self-audit of work rules to ensure compliance with all federal laws.
• Include in the company handbook a disclaimer that it's language should not be construed as intending to chill an employee's statutory rights under NLRA or other applicable laws.
• Insert statement where applicable that “This rule is not intended to prohibit employees from speaking with others about their terms and conditions of employment.”
• Use plain language for work rules.
• Review internal email policies.
Right to Work Ordinances
There has been increasing discussion among Indian Country employers since the San Manuel decision as to the strategy of adopting a so-called “Right To Work Ordinance.” Such ordinances are modeled after laws enacted in “Right To Work States” as permitted under NLRA Section 14(b).
The ordinance would prohibit any business operating on reservation land from entering into a contract containing a “union security” clause, which is a clause in a union-management agreement whereby, as a condition of employment, employees must provide financial support to a union in the form of dues, initiation fees, or other payments. This is the most common practice whereby unions collect money from union members. The right of a tribal employer to enact such an ordinance was recognized in the case of National Labor Relations Board v. Pueblo of San Juan, 276 F 3d 1186 (10th Cir. 2002).
It is the belief of some tribal employers that by adopting this type of ordinance, tribal businesses will be a less likely target of union organizing. Right to Work Ordinances are complicated and require input from the highest levels of tribal government. There are pros and cons to an ordinance, which every tribe should consider.
Union organizing in Indian Country continues to develop; consequently employers must become aware of ongoing legal developments and strategies to meet the upcoming challenges created by this trend.
Scott A. Wilson represents employers in labor relations and employment law, including Indian tribes. He can be reached by calling (619) 234-9011 or email firstname.lastname@example.org