The first day of the hearing into some of Foxwoods’ objections to the November election began on Tuesday. A.jpg)
mong 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.