Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

While a generic post today about sick leave might be more appropriate today given my absence for a few days, there are some actual updates in the labor and employment law arena that need telling.

One such story is the ongoing saga in between the UAW and the Mashantucket Pequot Trial Nation, which runs the Foxwoods Resort Casino in Connecticut.

As readers will recall, in mid-July the NLRB issued a new Complaint against Foxwoods for its alleged refusal to bargain with the UAW over a new labor contract.

On late Friday, August 1st, Foxwoods issued its formal answer to the complaint, along with a press release. 

But as longtime readers should know, there really is nothing new in either.  Foxwoods continues to insist that it is willing to bargain with the workers under tribal law, just not under federal law.  Foxwoods continues to insist, as it has from the outset, that tribal sovereignty must apply to it.  And so, its answer was really a mere formality.

Both sides show no sign of deviating from the projected path; the next obvious step will be an appeal in the federal courts of appeal later this year.  Until then, both sides will likely to continue issuing press releases touting one occurrence or another. None of it matters much at this point until the appeal is decided. 

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This should come as a surprise to no one, particuarly given my prior posts, but Foxwoods Casino (properly known as the Mashantucket Pequot Tribal Nation) today formally declined to bargain with the UAW over a contract for approximately 3000 table game dealers, setting up an appeal that will focus on sovereign immunity grounds. The Day first broke the story earlier this afternoon.

The Union's request for bargaining last week can be downloaded here. Foxwoods response today is available here. 

So, what's the general gist of the Tribe's argument declining bargaining?

In our view, the NLRB's effort to assert jurisdiction over Tribal gaming enterprises constitutes a serious breach by that agency of time-honored commitments made by the federal government to Indian Tribes in statutes and other laws that support and ecourage tribal self government and the building of strong tribal governmental institutions. 

The Tribe also goes on to note that the two presumptive nominees for President -- Senator Obama and Senator McCain -- have issued statements indicating their strong support for tribal sovereignty (though notably, not about this case). 

The Tribe included additional documents in support of its argument which are available here and here. 

Because the D.C. Circuit has already decided the San Manuel Casino case last year (which, in essence, allowed the NLRB to have jurisdiction over tribal casino workers), it is unlikely that the appeal will be filed there; instead, look for the Tribe to file in the Second Circuit where they will hope for a different outcome.   An appeal is not expected for at least several more weeks. 

Attorney General Richard Blumenthal issued a statement this afternoon "condeming" Foxwoods' decision.  Expect an amicus brief or intervenor brief from his office when the appeal is filed, as was done in the San Manuel case. 

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Yesterday, I reported that the NLRB had issued a decision certifying the election last fall of the UAW as the bargaining representative of the Foxwoods Casino Table Dealers.

Since that last post, the Mashantucket Pequot Tribal Nation has released a statement indicating that they will, in fact, appeal the decision.

The Day has the details in this report.  (The Hartford Courant's article is here but lacks the details of The Day's article.)  The UAW, as expected, has called on Foxwoods to now bargain with it, but Foxwoods has signaled that it will not.

None of this is frankly unexpected.  Until the U.S. Court of Appeals (or the U.S. Supreme Court) decides the issue of sovereign immunity, this case is far from over.

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Leave it to a government agency to release a long-awaited decision right before the July 4th holiday.  Since it is a vacation week, this afternoon's post will be brief. I'll followup again when there is more to report, including press statements that are expected to be released on the subject. 

For those first looking for background on the election battles between the UAW and Foxwoods, you can see my prior posts here.

So what's the news for today? Well, not surprisingly, the NLRB, in a decision officially released on June 30, 2008, certified the election last fall of the table game workers at Foxwoods casino.  You can download the brief decision here.  Much of the decision rests on the evaluation of the objections that Foxwoods raised to the election, and the run-up to the election. The NLRB found that none of the issues raised by Foxwoods warranted a new election.

The decision means that the UAW can now request that Foxwoods begin negotiations and bargaining over a contract. But don't expect that to happen. Foxwoods can refuse to bargain with UAW, which will just lead to another series of motions and appeals. This decision doesn't address once of the "big" issues that remain out there: namely, the tribe's contention that it is protected by the doctrine of sovereign immunity.

As I've said before, I would expect this case to continue in litigation until either a federal appellate court rules on the election, or it is appealed all the way to the U.S. Supreme Court.  The UAW certainly passed another hurdle today in its bid to represent workers, but the real battles remain to come.

The Day has covered this story before and I've just noticed that they have a brief post today.  Reporter Heather Allen has done an admirable job at providing solid reporting on the subject so I'm sure she'll also have more in the upcoming days if needed.

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