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

Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.

A new article by Thomas Meiklejohn -- one of the attorneys representing the UAW in its battle to represent workers at Foxwoods -- in Spring edition of the Labor & Employment Law Quarterly (not online) of the Connecticut Bar Association, sheds some additional light on the subject.

As Meiklejohn acknowledges, "federal law does recognize the sovereign right of a Native American tribe to govern itself with respect to its internal affairs".  Thus, he argues, the question that must be asked is: When can employment laws be enforced against an employer on a tribal reservation?

Meiklejohn suggests three factors ought to be considered:

1. The Nature of the Employing Entity: Is the employer a branch of tribal government, a commercial enterprise owned by a tribe or a privately owned business operating on a tribal reservation?
2. Who is Bringing the Action: Is it a federal government agency exercising its authority or a suit by a private party?
3. The Source of the Legal Claim: Does this dispute involve federal or state law claims?

Meiklejohn argues that it is a fairly settled issue in Connecticut and the Second Circuit that the NLRB has jurisdiction over tribal casinos.  I've indicated in prior arguments a bit of Foxwoods' response to this as well.

Of course, since Foxwoods has planned to appeal the election results to the Second Circuit and beyond, if necessary, we'll soon see how "settled" this law really is.

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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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The NLRB's hearing into Foxwoods' objections to the union election continues this week. The latest issue to resurface is one that has surfaced before -- tribal sovereignty.  As I've said previously, I believe this is the type of "big picture" issue that may ultimately take this case up to the U.S. Supreme Court. 

Because the case may ultimately end up in a higher court, I am certain that both sides are trying to lay the groundwork for such an appeal. For the tribe, that means raising the issue thoroughly and establishing a transcript and record that can be used later on. 

Reports of the hearing yesterday illustrate that this strategy was front and center is yesterday's hearing, with seemingly trivial issues over a subpoena becoming major issues. 

According to The Day (continuing its thorough coverage of the hearing):

Monday's arguments in the hearing, in which Foxwoods is disputing the results of a November vote by table-games dealers to unionize with the UAW, centered on whether the tribe's police department could or should respond to a National Labor Relations Board-issued subpoena.

Last week, a subpoena was served to the police department on behalf of the attorneys representing the UAW seeking a police report that was filed by a dealer at Foxwoods. ...

Elizabeth Conway, an attorney for the tribe, argued that the department was not subject to comply with the subpoena because it is “separate and distinct from the gaming enterprise.” The NLRB previously ruled that it has jurisdiction over the gaming enterprise.

...
[Raymond P. Green, an administrative law judge] asked why the police department doesn't just waive sovereign immunity and release the document.

Green said that without the document, it could be detrimental to the case, in that, he would discredit the witness' testimony. If the tribe's attorneys could produce the document, they should.

“The subpoena is almost a red herring,” Green said.

He continued by saying the tribe's attorneys used the witness as a sword, but when asked to back up her claims with the report, the tribe then held up a shield, using the sovereign immunity claim.

“There's no legitimate reason for it being held secret,” he said.

The judge is expected to rule on the issue in the next day or two. Meanwhile, the hearing continued with the Tribe resting its case and the union putting on several witnesses.  The hearing continues today.

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The first day of the hearing into some of Foxwoods' objections to the November election began on Tuesday. Among the arguments being raised by Foxwoods in this particular hearing is the argument that certain tactics taken by the union were unfair and the ballots improper because they were not in Chinese. The UAW has denied the claims and accused Foxwoods of stalling.

The Hartford Courant has this report in this morning's paper:

Foxwoods presented its arguments Tuesday before administrative law Judge Raymond P. Green, saying the NLRB made mistakes in conducting the vote and that interactions by union officials and some voters were unlawful.

Foxwoods' attorneys said the errors include printing the ballot only in English and providing notices explaining the election in only one form of the Chinese language, disenfranchising some Asian American dealers.

But attorneys for the UAW and labor board said the union and the board provided ample explanation of the election in a variety of languages. As for the ballot, they said, the casino didn't make a strong case that its dealers, who must conduct complicated casino games in English, couldn't understand the ballot.

But as I've indicated before, the hearing is, in my view, a distraction from the real battle -- the battle over tribal sovereignty.  And on that front, the Tribe fought and lost another skirmish on Tuesday.  Specifically, the Tribe filed a Petition to Revoke a subpoena requested by the Union. 

What the subpoena sought is irrelevant. Rather, as I've indicated previously, it is the arguments over tribal sovereignty that are  "big picture" issues that could take the case all the way to the U.S. Supreme Court. And on that front, the Petition to Revoke lays the groundwork. Paragraph 2 is the key paragraph to read:

This union subpoena should also be revoked because it is barred by the Nation’s sovereign immunity, which demonstrates another reason why the exercise of jurisdiction by the Board over governmental employers is unworkable. The Nation, as a federally recognized Indian tribe, enjoys immunity from suit. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S 49, 58 (1978) (“Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.”) While tribal immunity may be abrogated or waived, “[t]o abrogate tribal immunity, Congress must ‘unequivocally’ express that purpose, and to relinquish its immunity, a tribe’s waiver must be ‘clear.’” Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004). Neither has occurred here. Id. As an arm of the Nation’s government, the  Gaming Enterprise is immune from suit to the same extent as the Nation. Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 358 (2d Cir. 2000); Worrall v. Mashantucket Pequot Gaming Enterprise, 131 F. Supp. 2d 328, 331 (D. Conn. 2001). It is well-settled that tribal sovereign immunity necessarily means that an Indian tribe is not subject to legal process such as a subpoena for the production of documents

The argument the tribe is making that appears to be overlooked so far is that even if the NLRA is applicable, tribes may still have sovereign immunity, protecting them from lawsuits by unions and protecting them from responding to subpoenas from individuals (other than the federal government).  Given the history of Indian law in the United States, it's not an inconsequential argument to make (and hardly "frivolous").

The judge in the hearing denied the Tribe's Petition to Revoke and indicated he would grant an adverse inference if the tribe failed to comply.

The hearing on the objections will continue this week.  While there may be some interesting tidbits that pop out, it's difficult for an employer to overturn an election like this. But with some of the other arguments, like tribal sovereignty, out there, I'm not sure it will make a difference in the overall outcome of this matter.

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