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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Not unexpectedly, an Administrative Law Judge this week overruled Foxwoods' objections to the election of the UAW union as the representative for the table dealers (download ALJ decision here).  The Regional Director will certainly certify the election results.  At that point, Foxwoods is expected to refuse to bargain with the UAW which will set up further appeals.

As I said last fall, the tribe has already telegraphed its next move:

Leaders of the Mashantucket Pequot Tribe, which owns and operates Foxwoods, indicated the issue is probably headed in that direction.

"In light of what is at stake for all of Indian country, we must pursue this and it will require an appeal to the federal courts," said Tribal Chairman Michael J. Thomas in a letter circulated by the tribe.

Because I'm on trial, I'm only able to provide a quick summary of the decision.

Foxwoods had claimed that the ballots to the election should have been written in Chinese. That objection was overruled in a summary as follows:

Based on the totality of the evidence presented by the Employer and the Union, it is my opinion that the Employer has not established that any significant number of Chinese born unit employees had such difficulty with reading and understanding English that the failure to translate the ballot into Chinese could have affected the election. The employees presented by the employer did not represent a random sampling of the Chinese voters. And the evidence failed to convince me that any more than a few, at most, might have had any difficulty in understanding how to mark their ballots. (In a few of the cases, any difficulty they might have had could be attributable to their indifference). The Notices of the Election posted at the facility were in English and traditional Chinese. Both the Company and the Union communicated to the employees in English and Chinese by a wide variety of means. Additionally the Company held a series of meetings urging employees to vote “no” and explaining the election procedure. In some cases, meetings were conducted in English with a Chinese translator available to answer questions. In other cases, meetings were held where instructions about the balloting were given by a Chinese speaker. This was bolstered by mailed DVDs and pamphlets explaining the balloting procedure in various languages including Chinese.

Other objections, such as massed speeches, or intimidation, were also overturned.

As I have noted time and again, readers should not get too excited -- one way or the other -- on these types of decisions.  Foxwoods (and indeed, the UAW) is merely making a record for a likely appeal.  The real battles -- in the federal courts -- are still to come.

For a recap of ALL my prior Foxwoods coverage, click here.

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One of the bills in Congress this year that is expected to be heavily debated is the Employee Free Choice Act. 

What is it? Workplace Horizons has this take on it: "The Employee Free Choice Act (H.R. 800; S. 1041) would amend the National Labor Relations Act to make it significantly easier for unions to organize employees, to require binding arbitration of first contracts after 120 days, and to stiffen penalties for certain unfair labor practices."

The AFL-CIO has an alternative take on it: "The Employee Free Choice Act (H.R. 800, S. 1041), supported by a bipartisan coalition in Congress, would level the playing field for workers and employers and help rebuild America’s middle class. It would restore workers’ freedom to choose a union by: Establishing stronger penalties for violation of employee rights when workers seek to form a union and during first-contract negotiations; Providing mediation and arbitration for first-contract disputes; Allowing employees to form unions by signing cards authorizing union representation."

Obviously, how you feel about the proposal depends on whether you think the current system of union elections is broken.

One Connecticut Congressman, Joe Courtney, spoke this morning with the My Left Nutmeg blog with his thoughts on it. During a very interesting and insightful interview with Ken Krayeske, he voiced his strong support for the bill.

The Employee Free Choice Act is critical to make sure people can organize without recourse. It was one of my first speeches on the House floor. ...

If you go back to NLRA [the National Labor Relations Act, passed in 1937], a card check was supposed to be the method towards getting union recognition. It was down the road that employers were given the option of requesting an election, moderated by the NLRB.

The law we voted on in the House would say that a union would be recognized with a majority of signature cards signed by members of the bargaining unit. If even a third, thirty-three percent,  The law changed so that employers don't have the opportunity to mandate an election. Otherwise, these hired guns, consultants come in where there is strong support for union with cards, and they end up turning the election in to a long drawn out process that defeats the election.

Rep. Courtney -- who represents District 2, which includes many towns in Eastern Connecticut including where the casinos are located -- had particularly strong words about the Foxwoods election.  As readers of this blog will recall, there has also been a heated battle going on with a union election at Foxwoods, including a multi-day hearing that we've covered here in many posts. 

The Foxwoods case is classic as to why this needs to pass. The UAW won that vote 60-40, with a healthy margin.

Then management is coming in there with a big hired gun [in front of the National Labor Relations Board].  They put on days of testimony about what the ballot said, "Do you support this union?"

Management was bringing in employees who claimed they couldn't read it, and said they had difficulties with the language.. The testimony was comical. The translators that management brought in were at the hearing. Inadvertently, someone would ask a question in English, and they would answer it before the translators could.

These were all card dealers, of course they understand English. But it is a textbook example of how they abuse the system to delay union victories. If you get unions to get the cards, we don't have to go through these hearings.

Rep. Courtney is a decent fellow and, by all accounts, is doing well representing a difficult district..  But is Rep. Courtney referring to the lawyers who defended Foxwoods as mere "hired guns" that ought to be criticized for defending their clients?

If that's the implication -- and its a bit unclear from the statement -- that seems particularly harsh and unnecessary.  Whatever one thinks about Foxwoods (and if you ask 100 people, you'll get 100 opinions), it's unfair to challenge the attorneys merely for representing their client.  Our system of justice demands that each party -- no matter how disliked -- be given a full and fair opportunity.  Foxwoods should be no exception.

Moreover, it's not like the Foxwoods' appeal on the language issue was frivolous.  Indeed here, even the Hearing Officer stated that he would've handled the election differently and translated the ballots at issue.  Given the high burden of proof necessary to overturn an election, it's probably not enough to carry the day but we'll have to wait a few more weeks until the decision on the election is issued.

In the meantime, Rep. Courtney is obviously willing to keep pushing the Employee Free Choice Act.  How far will that battle take him? We'll just have to wait to find out.  However, even he suggests some excitement ahead: "The Card Check Act, that is the battle to be watching."

(H/T My Left Nutmeg)

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The hearing into Foxwoods' objections to the union election last fall ended yesterday with both sides claiming that they will ultimately prevail.  Briefs for both parties are due by February 28th and the judge indicated that he expects to issue a decision no later than March 15th.

The Day wraps up the details from the last day of the hearing here.  The Day reported that Judge indicated that he would have handled the ballots differently; whether this is going to be enough to overturn the election is a different question -- one that we'll have to wait to the judge's final decision for an answer.

The tribe has questioned why the ballots were not printed in multiple languages, why an election notice was only printed in one Chinese dialect and also contends that UAW representatives harassed and intimidated eligible voters before the election. ...

The majority of documents entered into evidence throughout the hearing dealt with the issue of language and to what extent Asian dealers, specifically those who speak Chinese, can speak, read and comprehend English.

[The Judge], as an aside at the beginning of the hearing, said that if it were his decision, he would have printed the ballots in Chinese.

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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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Are unions are dying breed? The answer to that question often depends on your perspective.  

As we've seen in Connecticut, if unions are "dying", they are not going down without a fight.

But statistics just released by the U.S. Department of Labor tell a more complete story.  The statistics show a leveling off of the decline in union membership that's been ongoing for the last two decades. 

The percentage of workers who belonged to a union in 2007 was 12.1 percentage, up slightly from the 12.0 percent in 2006.  (For comparison, union membership in 1983 was at approximately 20 percent.)

Indeed, unions can claim a 300,000+ union membership increase in 2007.  The full statistics are available from the U.S. Department of Labor on their website. 

The numbers for Connecticut also tell a noteworthy story:

• In 2006, 247,000 Connecticut workers belong to a union -- or 15.6 percent of the workforce.  This is higher than the national average.
• That number increased slightly in 2007 to 253,000 workers -- also 15.6 percent of the workforce.
• It is unclear from the survey whether this 6,000 worker increase includes the 2600 dealers who voted to unionize at Foxwoods last fall. As readers know, the election results are being appealed now.

For unions, the numbers in Connecticut show a relatively stable unionized workforce and should give them some solace that they are holding their own. And for employers, the numbers are a good reminder that unions still maintain sizable support in the state. 

Unions may be down overall from where they were decades ago, but they remain an important influence in today's workplace. Whether the numbers will decrease over time depends on so many factors -- including the possible passage of the Employee Free Choice Act -- that it would be irresponsible to predict what will happen.

But, the next time you read an article about how unions are going the way of the "horse and carriage", just remember that the statistics don't tell that story -- at least not yet.

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The hearing by the NLRB into objections raised by Foxwoods resumed Wednesday with new details about alleged harassment experienced by dealers in the course of the election last fall.  (For background on the objections and the elections, click here.) 

As usual, The Day is quick with the details this morning.  According to the report, one employee testified that after telling co-workers she would be voting "no" in the upcoming election, other dealers harassed her:

On the floor, one blackjack dealer said, “If you were a man I'd kick your (expletive).”

Another dealer told her she was a “backstabber” and was told, “You'll get what you deserve.”

Another claim that has not surfaced in much detail before (other than in the Tribe's opening statement) is the claim that there may have been improper campaigning going on.  The Day reports:

Many of the dealers, both men and women, testified that unidentified individuals were polling people in the restroom across from the Sunset Ballroom, where the election was held on Nov. 24.

The individuals, according to several witnesses, were holding a piece of paper and either a pen or pencil. Because some of the dealers were wearing their name tags, they believed the unidentified individuals were recording their name along with their vote.

They presumed the individuals were writing down names of people who did not support the union.

The Tribe is expected to rest their case sometime today at which point the UAW will have an opportunity to call their own witness to refute the testimony presented.  Obviously, as lawyers are apt to say, there's often two (or three or four) sides to every story so expect to hear some balance to these claims over the next few day. 

For a better idea on what the tribe is claiming in the objections as a whole, I'd also suggest reviewing the Tribe's opening statement available here. 

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NLRB Hearings are best left to those who have lots of patience and time, two things I'm missing this week. Thus, unless there are major developments that occur, I'll only briefly recap where things stand, on occasion, on the ongoing Foxwoods/UAW saga.

• Yesterday, the NLRB (also called "The Board") denied Foxwoods' Request for Review, which was discussed here.  It did so with little comment other than to note that the request "raises no substantial issues warranting review."  UAW indicated that it was a "major victory", according to The Day, and yet, given prior Board decisions on the subject, the result is not surprising.  As I indicated previously, the Tribe is likely not focusing on the Board, but establishing a record for an appeal to the Circuit Courts and perhaps the U.S. Supreme Court someday.
  
  
• The Hearing has continued with the Tribe making a little -- but not much -- progress in its argument that the election ballots should have been printed in two Chinese dialects.  The Day has a thorough report on Day 2 with an update on the goings on during Day 3.  Apparently, the judge had a few reservations about the ballots used.

At one point, after the third dealer testified, the judge presiding over the hearing, Raymond P. Green said a lot of the confusion could have been avoided if the ballots were printed in multiple languages.

“If it was me, I would have translated the ballot,” Green said, but added that more evidence is needed to overturn the election.

• A decision on the objections that the hearing is focusing on will likely come down within the next few weeks -- though it could be longer given the scope of the testimony.

UPDATE: The Day, has a more thorough report of Day 3 of the hearing available here now.  The attorneys representing the regional NLRB challenged the Tribe's arguments a bit more.

William O'Conner, an attorney representing the regional NLRB, said no written complaints from any employees about the lack of a multilingual ballot were provided to the board, despite a subpoena requesting such documents.

There was “not one iota of evidence” that any one was affected or disturbed by the ballot, O'Conner said.

Richard Hankins, an attorney for the tribe, responded after the hearing concluded for the day.

“That's grandstanding by Mr. O'Conner,” Hankins said. “Because he's trying to cover for the fact that the region didn't do its job.”

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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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While the mainstream press has been reporting on the upcoming hearing tomorrow on some of Foxwoods' objections to the election, Foxwoods has also been challenging the Regional Director's decision on December 21, 2007 rejecting the other objections raised by Foxwoods.  Thus, readers should be aware that reporting on the hearing tomorrow is only one front in the battle over unionization at Foxwoods. 

Earlier this month, Foxwoods filed a lengthy "Request for Review" of that December 21st decision, which can be downloaded here. While it repeats some of the same arguments made earlier, when read in conjunction with yesterday's column in The Day, it highlights the strongest argument that the Tribe has -- that tribal sovereignty and Indian law trump the "normal" rules of construction.

For instance, on pages 16-18, it notes that although federal agencies are generally afforded some deference to their rules, that deference should not be afforded when the rule is construed towards Indian tribes.

In line with that canon, the Board is consequently duty bound to interpret the NLRA's jurisdictional reach in a manner which furthers tribal interests.  Here, that inexorably leads to a conclusion that tribes, including [Foxwoods/Mashantucket Pequot Tribal Nation] fall outside the NLRA's scope..."

Foxwoods also argues that the effect of a potential strike on the tribe's ability to provide governmental services was not considered properly by the Regional Director.  Foxwoods' brief attaches multiple exhibits, which can be downloaded here, here and here, including its prior briefs which can give the reader additional insight into the tribal sovereignty argument. 

Notably, the State of Connecticut filed a brief in opposition on Friday, January 11th.  The State has taken a very aggressive approach to this matter and has again challenged the tribe's arguments -- saying they essentially nothing but a retread and dismissing the remaining arguments.   The  State's brief can be downloaded here.   It's also worth reading (its much smaller in scope) to understand the counter to the arguments raised by the Tribe. 

UPDATE: Jeff Hirsch, at the Workplace Prof blog, also has his thoughts on the arguments that are worth taking a look at. 

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Readers of the blog will no doubt know that the battle for unionization at Foxwoods Resort Casino  is one of the most significant labor issues in Connecticut in many years.  A hearing on the tribe's objections to the election of UAW is scheduled to begin on Tuesday, Januay 15th, which I've discussed before.

In advance of that hearing, The Day (which has been on top of the election throughout) published a very interesting column today by Timothy "Quietbear" Walker entitled Work With Tribe, Avoid Turf War.  

Walker, a citizen of the Mashantucket Pequot Tribal Nation, shifts the discussion from the objections to the election -- which contests the way the election was run -- to larger issues of tribal sovereignty, which it has raised before to no avail so far.  As Walker notes, "the battle is over the NLRB reversing 30 years of federal policy because of the actions of one small tribal group in California."
 
Walker argues that the NLRB's recent decision to exercise jurisdiction over tribal enterprises in some situations (including a tribal casino in California) is unfair and flawed. He argues that Tribes have the legal right to govern labor relations on tribal lands:  "Each tribal nation has the inherent authority to pass its own laws, tax its citizens, and determine the structure and operation of its government."

In doing so, he points to statement which he says "the federal government acknowledges 'the sovereign status of federally recognized Indian tribes as domestic dependent nations'".  What is this document? A June 1, 1995 Memorandum on Indian Soveriegnty by the U.S. Attorney General, which can be found here.  Its worth reading to understand that the "tribal sovereignty" is among the most wide-ranging and important rules for federally-recognized Indian tribes.

Walker's column argues that public education does a poor job of explaining this and argues that  many American were probably not aware that Native Americans were still around until the "media buzz on Indian Gaming".  He thus suggests that "15 minutes of research on the Internet will provide anyone interested with a simple understanding of the major issues being debated."  With the advent of Google, such information is now at your fingertips.

There are also two museums that are, frankly, worth visiting as well to get a better understanding.  (My law school did a good job explaining it, but its a little more expensive.) In Connecticut, the Mashantucket Pequot Museum and Research Center is a sight to see. 

And In Washington, D.C., the National Museum of the American Indian has tons of information -- much of it from a different perspective than most have probably been taught.  I had the opportunity to visit it last month and would highly recommend adding it to your itenerary on your next visit. 

(Hat Tip to Workplace Horizons Blog, which covered this today; the lawfirm behind the blog, Kilpatrick Stockton, has been representing Foxwoods in the UAW/Foxwoods dispute.)

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Last week, while many (including myself) were vacationing, the NLRB set a date for a hearing on the objections raised by Foxwoods. I last updated the status in this post.  You can find all the posts about the election here.   

As to the hearing, The Day reports,

A recent decision by the NLRB found that Foxwoods' claims that the board did not have jurisdiction over the casino and that the ballot failed to list the union's full name were without merit and were overruled.

But 10 of the 12 objections Foxwoods filed regarding the election remain unresolved, so on Jan. 15 the NLRB will hear testimony from both the United Auto Workers union, which petitioned for the election and right to represent the casino's roughly 3,000 dealers, and the Mashantucket Pequot Tribal Nation, which owns Foxwoods.

The hearing will focus on the conduct of UAW representatives leading up to the vote, including what Foxwoods claims was the harassment and intimidation of eligible voters who did not support unionization. The NLRB also will examine whether ballots should have been multilingual.

If the NLRB affirms the tribe's allegation of misconduct, it would force a new election.

Overturning the results of the election are never easy but without evaluating the evidence presented by Foxwoods, it is impossible to evaluate Foxwoods' likelihood of success.  Perhaps the UAW engaged in some egregious behavior before the election; if so, the results of the election would be set aside, perhaps even on just one valid objection (of the 10 remaining). 

But that's still a long way off. There will be a hearing, followed by a hearing officer decision and ultimately, a likely appeal to the entire Board.  That process could still take many months (or even over a year given the turmoil at the NLRB itself).  As stated in previous posts, this battle will continue for some time. 

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As predicted, Foxwoods casino has filed its formal objections this week to a union vote of table game dealers last month.  Thus begins what I would expect to be a protracted period of waiting. Sure, there will be the flare-up in the press here and there, but until the NLRB rules on the objections -- which could take many months, even over a year or two in some instances -- nothing will happen with this particular issue.

Indeed, even if the NLRB rules against Foxwoods on the objections, hat still does not end the appeal process. Foxwoods could refuse to bargain with the UAW setting up an appeal to a federal appellate court. 

According to the Hartford Courant, that is exactly what the tribe intends to do:

Leaders of the Mashantucket Pequot Tribe, which owns and operates Foxwoods, indicated the issue is probably headed in that direction.

"In light of what is at stake for all of Indian country, we must pursue this and it will require an appeal to the federal courts," said Tribal Chairman Michael J. Thomas in a letter circulated by the tribe.

Foxwoods statement is telling; as I indicated back in September, this case seemed destined to be an epic battle -- not just about Foxwoods but all the tribal casinos. Foxwoods' reference to what is "at stake for all of Indian country" enforces that notion.  There's simply too much riding on the decision here.

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Lost in the shuffle of the election at Foxwoods last Saturday, was the one-paragraph concurrence issued last week denying Foxwoods' Request for Review of the Regional Director's decision mandating an election.

That concurrence by Member Peter Schaumber (who I met earlier this month), can be found in the Daily Labor Reports (subscription required).  It paints a dismal picture for Foxwoods as it continues to challenge the NLRB's decision on jurisdictional grounds.

By way of background, I noted last month that:

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.

Given that precedent, in a concurring one-paragraph decision, Schaumber noted that San Manuel Indian Bingo & Casino is current board law and there "is not at present a three-member majority of the board prepared to overrule it." Schaumber dissented in that 3-1 decision that scrapped the board's former position that the location of a business--whether on or off an Indian reservation--is key to whether the NLRB will assert jurisdiction.

Because Schaumber did not HAVE to issue a decision, it is noteworthy that he did so. In my view, he was sending a message to the parties that it is unlikely the San Manual Indian case will be overturned at this time and that further reviews by Foxwoods would face an uphill battle, at best. Of course, Foxwoods may attempt a different argument or appeal through a different judicial district, but this case precedent will carry some weight.

Either way, Schaumber's decision is sign that Foxwoods' continued challenges on jurisdictional grounds may be doomed from the start -- at least with the current makeup of the Board.

There are, of course, other avenues and grounds for Foxwoods to challenge the election so don't expect Foxwoods to simply roll over on this one. But the knockout punch of an argument based on jurisdictional grounds seems a long-shot for now.

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The battle over unionization at Foxwoods casino moved a bit closer to resolution early this morning.  The Day reports that dealers voted in the United Auto Workers union by by a vote of 1,289 to 852.

As I suggested over two months ago, the vote tally itself is comparatively meaningless because Foxwoods would likely challenge the results on jurisdictional grounds. After all, if the unions get a foothold at Foxwoods, many of the tribal casinos nationwide would also be susceptible to unionization. 

Foxwoods, all but confirmed this strategy earlier today.

Despite the win by the UAW, Foxwoods President John O'Brien said this morning that the company and its owners, the Mashantucket Pequot tribe, would examine all their options, including a legal fight, before letting the UAW in the door.

“We are disappointed with the preliminary tally, however, these results will not be official until all legal issues, including jurisdiction, are resolved,” O'Brien in a statement. “We continue to believe as we have from the very beginning that the labor board lacked jurisdiction and that any election should have been governed by tribal laws.

When the dust settles this week, expect a continued challenge by Foxwoods. With thousands of other employees susceptible to further unionization efforts, the stakes are simply too high -- for them and others.

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As expected, the NLRB has denied Foxwoods' request to stay (i.e. postpone) the union election scheduled for this Saturday without comment.  The NLRB also denied Foxwoods' request for review of the underlying decision setting up the election by Regional Director Peter Hoffman. 

The Day reports:

“The board has denied the employer’s request for review,” said regional NLRB Assistant Director John Cotter. "For the record, the decision (by Regional Director Peter B. Hoffman) stands. That’s all they say and all they need to say.”

The voting takes place in the Sunset Ballroom in the Great Cedar Hotel from 8 a.m. to 11 p.m. Saturday.  As a result of the two decisions, the ballots will be counted at night’s end Saturday by the NLRB, with a dozen agents assisting what Cotter calls the largest union election in recent history.

I've previously posted on the election here and here.

Because of the Thanksgiving holiday, I'll try to sum up things when I return to active blogging early next week. Should Foxwoods lose the election, expect a quick appeal from Foxwoods. 

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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.

11/25/07 Update: Dealers voted in favor of UAW. Details can be found here.

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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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