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.