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

As I noted nearly a month ago, the historic battle for recognition by UAW at Foxwoods Casino was likely to be a long drawn-out affair.  As with any boxing match, it can be foolish to to draw any conclusions by what happens when the first few punches are thrown. 

The UAW landed a soft punch first with the decision this afternoon of NLRB Regional Director Peter Hoffman that Foxwoods must hold an election and that the NLRB has the authority to oversee the vote. 

The decision, however, cannot come as a surprise at all based on recent NLRB and court decisions.  Specifically, in February 2007, in the San Manuel Indian v. NLRB case, the D.C. Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB) ruling that the National Labor Relations Act (NLRA) applied to tribal enterprises, such as casinos.  It would've been highly unlikely that a Regional Director would go against such precedent here. 

The Day, of New London reports this evening that Foxwoods has issued a statement strongly disagreeing with the decision.  In doing so, the tribe signaled a possibility that an appeal to the NLRB would follow in the next 14 days:

“We strongly disagree with the regional director’s decision.  The UAW would like people to believe that this issue is about the right to organize; this is not the case. The issue is one of respecting the Tribe as a government. The Tribe has enacted a Tribal Labor Relations Law which gives employees the right to organize and bargain collectively if they choose. Tribal employees are government employees, in the same way that State employees are government employees and the Tribal law was modeled after other government’s labor laws, including Connecticut’s.

“We strongly believe that the NLRB does not have jurisdiction as the Tribe is the governing body which has the inherent authority to regulate employment on its reservation and it has historically done so. The UAW would like people to believe that the Tribe is not being fair-in fact it is the Union that is not being fair. There is a simple way to respect the Tribe as a government and at the same time address any organizing interests of our employees. That would be to file the petition pursuant to Tribal law. The UAW would prefer to litigate this for years to come in their attempt to undermine Tribal government, instead of respecting what they claim are employee concerns and addressing their issues in the tribal forum.”

The Day, went on to report that UAW representatives were "ecstatic" when they learned of the news. 

While Union officials can certainly be pleased that they made it through this straightforward first step, it is worth noting that union officials in the San Manuel case were probably happy when they first filed their papers...in 1999.  Yes, you read that correctly; it took nearly eight years for the San Manuel case to make its way through the NLRB and then the courts.  The Tribe's reference for litigation "for years to come" is certainly on the mark. 

Will this case move more quickly? Probably. But not THAT quickly. That's not how the NLRB typically works. Indeed, given the snail's pace that the NLRB often seems to work at, its unlikely that either side will see a quick resolution to this issue  -- certainly not in the next few months.

What to expect next? Expect to hear that an appeal has been filed and then expect to wait much longer than that to find out the results of such an appeal.  Absent some major changes or developments, the battle is just beginning.

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USA Today reports that the United Auto Workers (who are dominating the headlines this week with their strike and settlement with General Motors) filed formal petition papers with the National Labor Relations Board this morning to form a union of approximately 3000 dealers at Foxwoods Casino in Connecticut.

Conventional wisdom is that unions do not file for petitions for elections until and unless they get a wide majority of employees to sign cards to force a vote (even though the threshold is a mere 30%).  Union officials, according to the article, confirmed that they have such a "supermajority". 

Of course, whether those employees will ultimately vote for the union during a closed-ballot election remains unknown.  Certainly, the casino -- as with other employers who may not believe a union is in the best interests of its employees -- will likely use the time before the election to try to convince its employees to vote against unionization.

Because Foxwoods is the largest casino in the world (an amazing concept when you think about it), and because casino workers at tribal casinos are largely non-unionized, this case may have tremendous symbolism going forward.  (Indeed, Attorney General Richard Blumenthal recognized this earlier today.)

Unions, in general, have suffered drops in their ranks, while tribal casinos have been going through unparalleled growth.  In fact, this union organization drive is likely to be one of the largest that Connecticut has seen in decades.

For employers in Connecticut, the case is a simple reminder that unions still have tremendous influence and drive in certain industries.  They may be down, but they are certainly not "out".   Well-run unions (and there certainly are those out there) should not be underestimated.

Unions have always thrived in situations where (rightly or wrongly) employees are perceived as being mistreated or not heard.  (It should also be noted that unions have also peacefully co-existed with plenty of other well-run companies too.)  Because the tribal casinos in Connecticut have been perceived as being run without much government oversight, the situation was ripe for unions to attempt to enter them.

Expect to hear about this case for many months to come.  Will this be a stinging defeat for unions or the start of something much larger at the casinos? Its honestly to early to tell. But there is one thing that you can bet on  -- its going to be an epic battle. 

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A recent article by the Connecticut Law Tribune reported on the trial of two bar workers who claimed that they were terminated in retaliation for reporting a supervisor's alleged sexual harassment of a waitress.  According to court records In the trial of  Daniel Van Kruiningen and Kimberly Chatterton v. Plan B, LLC d/b/a Mohegan After Dark, which took place in federal court in May 2007 (the article fails to mention the date), the jury found for the employer on all counts, including a common law claim for wrongful discharge. 

The Tribune article sums up the salacious allegations found in the Complaint:

Mystic resident Daniel Van Kruiningen and Kimberly Chatterton of Norwich were assistant manager and club manager of Ultra 88, an upscale lounge at the Mohegan Sun casino on Dec. 7, 2003. After hours, Chatterton was checking on other bars owned by her employer... 

Afterwards, Van Kruiningen obtained copies of the video surveillance camera’s recordings at Lucky’s Lounge, which showed that a young waitress had returned to Lucky’s after Chatterton left. Indistinctly, the videos appeared to show that [the supervisor] had sex with her on or near the bar.

According to the Complaint in the matter, they alleged that the video showed the supervisor causing the waitress to become intoxicated through serving of alcohol. Chatterton and Van Kruiningen alleged that they complained about serving alcohol to this underage waitress and about the incident, and alleged that they were fired a month after this incident in retaliation. 

From an employment law perspective, the most interesting aspect of the case is the wrongful-discharge claim.  The real action on this count took place behind the scenes before the trial, however.  In ruling on a motion for judgment, the District Court rejected the employer's claim that reporting a supervisor's serving of alcohol to minors was not an "important public policy" giving rise to an exception to the employment-at-will doctrine.  The court found that a wrongful discharge claim could arise from a state statute that forbids the serving of alcohol to minors. 

Footnote 6 of the opinion contains an interesting observation by the court about whether its ruling  will open the floodgates in other matters.

Defendant maintains that “[u]nder plaintiffs’ theory, every employee who observes – but does not participate in – a supervisor’s single violation of an important public policy, and who reports such violation to her employer, is immune from termination on an at-will basis.” ...This is an overstatement because it overlooks the reality that such plaintiff must prove that he or she was terminated in retaliation for his or her reports of such  unlawful conduct; while the amount of allegedly unlawful conduct, and/or the number of times plaintiffs voiced complaints, may be relevant to the jury’s causation determination, these considerations do not render plaintiffs’ public policy claim as alleged legally insufficient.

What does this mean for employers in the state? It's another case that has, depending on your perspective, eroded the at-will employment doctrine in Connecticut further, or expanded wrongful discharge claims to protect employees who report violations of state law. Although the employer ultimately prevailed at trial, the cost of the litigation as well as the uncertainty regarding the outcome must have weighed on the employer.

For employers in the food-services industry, the decision takes on some added significance. Because complaints regarding other employee's violations of liquor laws could give rise to a wrongful discharge claim under this decision, employers should consider investigating such complaints and ensuring that its supervisors do not retaliate against employees who make such complaints. Advice of legal counsel to discuss the particular circumstances should also be considered.

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