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Large-scale gaming sponsored by Native American tribal governments started in the United States in the early 1980s and was recognized in 1988 by Congress by the passage of the Indian Gaming Regulatory Act. Federally-recognized Native American tribes are considered domestic dependent nations in the United States and “tribal sovereignty” refers to tribes’ right to govern themselves in all areas except those relinquished under treaty with the U.S., extinguished by Congress, or addressed by federal courts under certain circumstances. U.S. Department of the Interior Indian Affairs. The application of federal employment law as to Native American gaming establishments has frequently been the subject of litigation; tribes have been seeking to exempt their gaming facilities from the National Labor Relations Act (NLRA) and its union organizing provisions for more than a decade.
Earlier this year the U.S. Supreme Court declined to hear a case involving a dispute between the Saginaw Chippewa Indian Tribe and the National Labor Relations Board (NLRB). This decision effectively leaves an earlier decision in place which held that the NLRA applies to tribes on trust land within reservations, despite the tribe’s inherent sovereignty. The holding grants NLRB jurisdiction to regulate employment practices, including union organizing efforts, at tribal businesses, including casinos. While the larger impact of this decision, as well as that of the pending Tribal Labor Sovereignty Act (which would squarely address this issue) are not yet known, it is quite probable that unions will begin to expand their organizing efforts to tribal casinos and other tribal businesses in certain areas of the U.S. Tribes within these areas must be prepared to respond to union organizing efforts, and become familiar with the rules and restrictions encompassed within the NLRA regarding union activities.
There are measures tribal businesses can take to avoid unionization as well as to correctly and legally respond to unionization efforts. For instance, it is critical that supervisors and managers do not threaten or punish employees who engage in union activity, interrogate employees regarding union activity, promise employees wage increases or other special concessions to not unionize, or spy on employee union representatives by attending union meetings or other such undercover activities. A union-free workplace is never guaranteed, but tribes should be prepared to respond if and when union organizing efforts are taken.
If you feel your business – whether Native American-owned or not – may be subject to unionization efforts by employees, seek counsel with your Ally Law labor and employment lawyers to determine how to legally and effectively address the issue. Other Global Matters blogs relating to labor union issues include Three U.S. Wage And Hour Developments Favoring Employers This Year and New US Labor Organizing “Persuader Rule” Faces Opposition. For more information about Ally Law member firm services and outstanding lawyers, contact us at team@ally-law.com.
Click here for the original article by Maureen E. O’Brien of Ally Law member Varnum, LLP.
