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

Just days after the UAW suffered a defeat in trying to organize off-track betting workers at Foxwoods, the UAW has decided to withdraw its petition to represent a group of about 80-120 slot technicians.  The decision also came just hours before a hearing was to be held on the subject.  The withdrawal allows the UAW to re-file a petition again, though none is expected anytime soon. 

The Day continues its excellent coverage of the ongoing labor battles at Foxwoods with an article about the election in today's paper.

As you will see, although I am not involved in the matter, I have provided some observations for the article.  There may be several reasons why the union withdrew its petition, but with neither side commenting on it, the most likely reason is that the UAW believed that it did not have support among the slot technicians and would likely lose the election. 

If that occurred, there would be a one-year bar to trying to re-organize.  Moreover, it would have been the third straight defeat for union organizing efforts at Foxwoods -- not a pattern that the unions would like to have publicized.

Perhaps the observation by The Day is correct:

The withdrawal signals a slowing in the momentum that labor unions appeared to have been gaining at Foxwoods ever since the UAW won the right to represent nearly 3,000 poker and table-game dealers in November.

I'll repeat what I said last fall when the organizing efforts first became public: This event is likely to take several years with lots of ups and downs between now and then.  Right now, both Foxwoods and UAW can claim some victories but the ultimate battles still lie ahead.

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With a union election set for this Saturday, Foxwoods has asked the NLRB to stay the election in a motion filed today. 

In its Motion to Stay (download here), and perhaps recognizing the uphill battle it faces in getting the election stayed, Foxwoods has pointed out time and again the unique nature of its arguments. (In many election matters where there is an issue, the vote would occur with the ballots impounded).  Essentially, Foxwoods is claiming that the very act of performing an election on tribal lands is the most troubling aspect of the NLRB's decision to hold an election and therefore the election should be postponed until its request can be heard.

Foxwoods argues as follows:

Unlike most circumstances encountered by the Board, impounding the ballots would not “preserve all contested issues for Board determination” because the appropriateness of conducting an election is the most significant contested issue. And the mere act of conducting an election is arguably more offensive to Tribal sovereignty than counting the ballots.

Few acts would offend a government’s sovereignty more than for another government to send a team of agents inside its boundaries to conduct an official election. That is especially true where, as here, the Nation has its own labor laws and its own election procedures.  If the Regional Director for Region 34 were to conduct an election within the Nation’s boundaries while the Board’s jurisdiction is still an open question, it would unnecessarily and prematurely cast a cloud over the Nation’s laws and over the Nation’s sovereignty. The United States’ policy of government to government consultation would be transformed to a policy of “act first, consult later.”

Foxwoods also today filed a motion to consolidate several different matters pending before the NLRB into one for convenience and judicial economy. 

We've previously posted about the election here and here, and noted that this case is likely to be a battle because of the issues at stake.  The decision and the request to review the decision are noteworthy for the unique issues that they raise:

• The decision ordering the election can be downloaded here. 
• Foxwoods' original request for review, which is still pending with the NLRB, and was filed earlier this month can be downloaded here. 
• The union's brief in opposition can be downloaded here. 

The NLRB is not known for its promptness in reaching decisions but given the high-profile nature of this case, it will be interesting to see what they do.  Because the NLRB does not like postponing elections, as a general rule, I suspect that they will allow the election to go forward and impound the ballots but given the nature of this case, all bets are off.

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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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