US Government Studies Tulalip Tribes' Labor Relations Model

This week Assistant Labor Secretary Jane Oates visited with board members and staff of the Tulalip Tribes to learn how the Tribes dealt with labor agreements during the construction of their casino and resort hotel complex in Washington state. Oates offered praise for the way Tulalip handled labor agreements on the reservation and ensured Tribal members have employment opportunities.

“We hear nightmares about how some Tribes are not able to negotiate with labor unions,” Oates said. “The Tulalip Tribes did an amazing job, and we are here to learn from them.”

Oates’ tour included a visit to the Tulalip Tribal Employment Rights Office, which has a mission to protect preferential employment for tribal members and contracting rights on the reservation. The office also works to improve wages, training and career and contracting opportunities.  Unemployment on reservations throughout the nation is a concern in President Barack Obama’s administration, Oates said. “It’s unacceptable that unemployment in Indian Country is five times what it is among non-Natives,” she said.

Tulalip board member Glen Gobin told Oates that myths, stereotypes and misconceptions about the tribal work force were dispelled during construction projects on the reservation. “We know that our Tribal members are our most valuable resource,” Tulalip Chairman Mel Sheldon said.
 

Senator Inouye Seeks To Exempt Tribes From The NLRA

 

The proposed federal Employee Free Choice Act (EFCA) introduced in the House of Representatives earlier this year is designed to aid the organization efforts of labor unions. Among other provisions, the current version of EFCA would eliminate secret-ballot elections for union certification and allow a union to be established through a “card check” system similar to gathering signatures for a petition. In conjunction with the 2007 decision in San Manuel Indian Bingo & Casino v. NLRB that applied the National Labor Relations Act (the NLRA) to Tribal casinos, the likelihood of union organization activity in Tribal jurisdictions would increase significantly. In response, Senator Daniel Inouye (D-Hawaii) has stated his intention to propose an amendment to EFCA that would expressly exclude any federally recognized Tribe or Tribal entity from coverage by the NLRA.

The NLRA prohibits employers from interfering with employees' efforts to organize, and EFCA would stiffen enforcement, requiring employers to pay fines and increased back pay for violating employee rights. EFCA’s most controversial provision would allow a union to be recognized as the sole collective bargaining unit for employees based strictly on a majority of employees have signing forms in favor of the union, rather than through a secret ballot election. EFCA additionally provides for mandatory binding arbitration if the employer and the union cannot reach a collective bargaining agreement. The arbitrator could — without employer consent — set terms and conditions of employment that would be binding on the employer for two years.

As the federal legislation continues to develop, it behooves Tribes to create their own labor and employment policies and procedures to govern conduct within their jurisdiction. Federal intervention in Tribal legal affairs is often based on a Tribe’s lack of specific regulations addressing topics (e.g. labor and employment); conversely, federal agencies are often less likely to assert authority over Tribal affairs when the Tribe at issue has its own well-defined legal policies that render federal involvement unnecessary. For additional information on the creation of Tribal labor and employment policies, contact attorneys Katheryn Bradley or Julie Kebler.
 

 

9th Circuit Holds Tribes Subject To Fair Labor Standards Act - Including Federal Inspections

In its just-released opinion in Solis v.Matheson, the 9th Circuit Court of Appeals has held that the federal Fair Labor Standards Act (FLSA) applies to Tribal businesses, whether located on-Reservation or not, and that federal enforcement agencies can enter upon Tribal lands and search records to determine compliance.

The Solis case involves a claim for payment of overtime wages by an employee of a Native-owned retail operation. The Puyallup Tribe in Washington state has a store known as Baby Zack’s Smoke Shop located on trust land within its Reservation. Baby Zack’s sells tobacco products and sundries to both Tribal members and non-Natives, and regularly employs both Native and non-Native workers. An employee filed a claim for unpaid overtime wages against the owner of Baby Zack’s, and the Federal District Court entered judgment concluding that the FLSA applied to the shop, and that the failure to pay overtime wages violated the FLSA. The judgment enjoined the owners of Baby Zack's from violating the FLSA and ordered payment of $31,339.27 in overtime wages.

On appeal, the 9th Circuit not only affirmed the applicability of the FLSA to on-Reservation Tribal businesses, but went farther by specifically authorizing federal searches on Tribal lands as part of enforcement practices.


We conclude that the overtime requirements of the FLSA apply to the retail business at issue in this case. Because the FLSA applies to the retail business, we conclude that the Secretary had the authority to enter the Indian reservation to audit the books of the business, as she would regularly do with respect to any private business.

Accordingly, because the FLSA overtime provisions apply to the (shop), we conclude that the Secretary was authorized to make entry on to the reservation in order to locate records via her regular procedure in her effort to enforce the statute in question.

Unless the decision of the 9th Circuit is overturned by the US Supreme Court, Tribes and Native Corporations must now comply with the requirements of the FLSA, and assume they are subject to intrusive inspections by federal regulators. It therefore behooves Native entities to craft and adopt employment and labor policies that will serve their business interests while avoiding conflict with federal standards.
 

Yakama Nation Pursues Foreign Guest Worker Program

The Tribal Council of the Yakama Nation has approved the development of a guest-worker program that would require licenses or permits for foreign workers and non-Tribal citizens working on reservation lands.

The Yakama Nation’s territory contains much fertile agricultural land that is famred by a significant force of migrant workers during the growing seasons. The size of this non-Tribal workforce presents significant tracking problems for the Nation, and the presence of undocumented workers on Nation’s 1.2 million-acre reservation presents challenges in determining whether they legally present on both US and the Nation’s territory. The guest worker program is intended to increase accountability and ensure the legality of workers laboring on the Nation’s land.

The Yakama’s guest worker proposals may be the first of its kind in Indian country, but its long-term viability is as yet uncertain. According to the federal government’s Immigration and Customs Enforcement department, Native American Tribes are typically not viewed as sovereign nations on issues of immigration law. The authority of the Yakama Nation to enforce U.S. immigration laws or implement its own is presently under review.
 

Mashantucket and UAW Agree to Negotiate Labor Agreement Under Tribal Law

Only days after filing an appeal of the National Labor Relations Board’s ruling ordering it to bargain with the over 2,500 dealers represented by the United Auto Workers, the Mashantucket Pequot Gaming Enterprise (Foxwoods Resort Casino) and the UAW have agreed to enter into discussions regarding a labor agreement under Tribal law.

The jurisdictional dispute over whether Tribal laws or the federal National Labor Relations Act of 1935 apply to employees on Tribal land has been waged since last November, when poker dealers at the Mashantucket Pequot Tribal Nation’s Foxwoods Resort Casino voted 1,289 – 852 to join the United Auto Workers union. The federal law is administered by the National Labor Relations Board. Mashantucket has supported employees’ right to unionize, but says they must do so under Tribal labor laws.

The dispute at Foxwoods has been watched closely by Tribes and unions across the country, as it will set a precedent for labor relations involving Tribal enterprises. Federal labor laws did not apply on sovereign Tribal land for almost 75 years after passage of the National Labor Relations Act, but in January 2007 a federal court decision upheld the NLRB’s own earlier ruling that the San Manuel Band of Mission Indians in California was subject to federal labor laws.

The San Manuel case involved a narrowly-applied definition of a casino as a commercial operation, but did not deal with the wider issue of Tribal sovereignty or Indian casinos as governmental operations that provide revenue for Tribal services – issues that may still be resolved in court if the Mashantuckets and UAW fail to reach agreement in the current talks.