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

It's been a little while since we last checked in with the unionization efforts at Foxwoods.  The appeal process of the election of UAW has begun its slow arduous process so don't expect to hear much on this for weeks or months at a time.

But in the meantime, various other groups have been vying to try to unionize other workers at Foxwoods. Yesterday,  engineering department workers cast ballots about possible union representation by the International Union of Operating Engineers.

The workers overwhelmingly rejected such representation by a vote of 215-67. 

The Day has this report from late Thursday evening:

The election results were hailed as a major victory by Foxwoods, which has recently received intense pressure as several unions have filed petitions seeking to unionize workers at the casino.

”We are very pleased with the vote of confidence that employees have given Foxwoods management today,” said Foxwoods President Barry Cregan in the release issued shortly after 7 p.m. “Those team members displayed outstanding professionalism through the entire process and clearly agreed that having an intermediary come between us wasn't necessary.”

What's interesting about this is that the tribe had also complained to the NLRB that the election shouldn't go forward citing its sovereign immunity, as it has done on other elections. The Regional Director -- as it has done before -- rejected those claims in a decision found here.  But this time, Foxwoods prevailed in the union election so unless the union raises exceptions to the election, it is unlikely that the immunity argument will be tested again here.

Foxwoods still has several more union petitions from other worker groups to face in the upcoming months.  You can find my prior coverage of the Foxwoods unionization efforts here.

Because of Foxwoods' status as one of the largest employers in Connecticut, and the novelty of unionization of its employees, this remains a topic worth following in the upcoming months.

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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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Two years ago, the new Marriott Downtown Hartford opened, with great fanfare, next to the new Connecticut Convention Center. (The Center, incidentally, is a terrific facility if you have not visited and the hotel is pretty snazzy too.)  Over the next year, the fanfare was marked by labor pickets involving both facilities.  Then Marriott requested that the NLRB hold an election to determine if the hotel's employees wanted to be represented by the union that was picketing.  Things have been quiet lately. So what happened?

Well, a brief primer. Shortly after the hotel and center opened, a UNITE HERE Local 217 representative asked  the hotel to "begin discussions about a Labor Peace agreement." A local Hartford ordinance requires, under various circumstances, that employers with development projects to sign an agreement with a union upon request. 

After months of back and forth on this issue, in April 2006, the union sent a letter to Marriott indicating that it would be "commencing an organizing drive" among the hotel's employees and was "prepared to begin discussions to determine whether we might reach a 'labor peace agreement' setting ground rules for organizing." 

The Daily Labor Reports picks up the story from here:

Marriott then petitioned with NLRB seeking a representation election to determine whether the hotel's employees wanted UNITE HERE to represent them. The union conducted a protest rally at the hotel and the convention center shortly thereafter.  One week later, NLRB Regional Director Peter B. Hoffman dismissed Marriott's election petition, finding that the union had not made a present demand for recognition.

Marriott asked the National Labor Relations Board to review the regional director's decision, arguing that the union "demanded" a card-check agreement, engaged in "representational picketing," and "invoked" a city ordinance that Marriott said applies only where a union has made a demand for recognition.  The Board granted review in August 2006 with great fanfare.

What began with a loud roar, has now ended softly -- at least for now.  Last week, the NLRB quietly affirmed the Regional Director's decision in a short and unpublished decision, according to the Daily Labor Reports.  The decision did not explain its rationale and indeed, a review of the NLRB's website barely mentions the case. 

Marriott had asked for the Board to overrule New Otani Hotel & Garden, 331 N.L.R.B. 1078, 167 LRRM 1039 (2000).  In that case, the Board denied review of a regional director's dismissal of an employer's election petition and "held that a union's informational picketing and its repeated requests for a neutrality and card-check agreement did not constitute a present demand for recognition."

Thus, for all of the speculation out there that the present makeup of the Board favors employers, this decision deflates such speculation. Given the opportunity to overrule precedent, the Board sidestepped the issue, at least for now. 

As for the Marriott Downtown Hartford, it remains to be seen what will happen there.  The picketing has quieted down from last year and both sides turned down the rhetoric as well.  Where they go from here will be up to them.

(Hat tip: Workplace Prof Blog)

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