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.