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.