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.