Last Friday, I reported on a late-breaking agreement to discuss labor matters between the UAW and Foxwoods. Since that time, media reports have been wide with editorials discussing the matter as well.

The Day has been leading the way with a few reports/editorials:

So what’s going on now? Don’t expect to hear anything from the parties for at least 30 days, if not longer. Richard Hankins, a Kilpatrick Stockton attorney representing the Mashantucket Pequot Gaming Enterprise states:

The parties are contemplating a framework that could constitute a win for everyone involved. It is important, however, that the discussions continue without external pressures at this point. When it is constructive to report on specifics, the parties will do so.

In thinking about this matter over the weekend, I’ve been convinced more than ever that the UAW’s willingness to apply tribal law is a very big deal — a view shared by my fellow bloggers at Workplace Prof Blog

But don’t expect to hear a lot of that from Foxwoods. Despite the concession, Foxwoods still has to deal with UAW and there’s no good reason to embarass the UAW by claiming a victory in the application of tribal law. (And to Foxwoods’ credit, Foxwoods has not been particularly hostile to the UAW through this process instead focusing on issues like tribal sovereignty to make their case.)

So if an agreement is ultimately reached, expect to hear lots about how the agreement is a win-win for Foxwoods AND the UAW.  It may be that terms of a labor agreement are a win-win but make no mistake: applying tribal law to the union would just be a win for Foxwoods. 

While most people are focusing on Connecticut’s ruling legalizing same-sex marriages, word leaked out late today that the UAW and Foxwoods agreed to enter into discussions for a possible labor agreement.   (For background on the UAW/Foxwoods dispute, see prior blog coverage here.

The joint press release — issued at 4:30 EST — is brief but dramatic in its wording. 

Today – The UAW and the Mashantucket Pequot Gaming Enterprise agreed to enter into discussions for 30 days to determine if an agreement can be reached to bargain under tribal law without either party waiving any of their rights or legal positions under the National Labor Relations Act. 

The parties further agreed that they will not discuss the status of negotiations during this 30-day period.

If you blinked, you probably missed the biggest news contained here.  It’s not that the parties agreed to enter into discussions; it is that the parties are working on an agreement under tribal law.  This is a major victory for Foxwoods and a major concession by the UAW, both of which have been fighting for nearly a year over tribal sovereignty and whether federal or tribal law should apply to UAW’s efforts to organize workers at Foxwoods.

Foxwoods has long claimed that it is willing to negotiate — but only if tribal law applied.  Why? Because Foxwoods believes that it has tribal sovereignty and that federal labor laws should not apply to it. 

The press release further notes that such discussions and negotiations are being done without "either party waiving any of their rights or legal positions" under federal law — presumably referring to Foxwoods’ appeals of various NLRB rulings. But it is likely that if the parties reach an agreement — which is still a big if — they will then agree to withdraw any further appeals.

Despite the apparent concession by the UAW, this announcement does have some potential to be a win-win situation for both. Foxwoods can avoid potentially damaging rulings by federal courts applying labor laws to it, and UAW can start representing workers — albeit under tribal law.  

I’ll have more analysis next week when I return from travels but in the meantime, feel free to post your comments below.

Just days after the UAW suffered a defeat in trying to organize off-track betting workers at courtesy morgue file "slot"Foxwoods, the UAW has decided to withdraw its petition to represent a group of about 80-120 slot technicians.  The decision also came just hours before a hearing was to be held on the subject.  The withdrawal allows the UAW to re-file a petition again, though none is expected anytime soon. 

The Day continues its excellent coverage of the ongoing labor battles at Foxwoods with an article about the election in today’s paper.

As you will see, although I am not involved in the matter, I have provided some observations for the article.  There may be several reasons why the union withdrew its petition, but with neither side commenting on it, the most likely reason is that the UAW believed that it did not have support among the slot technicians and would likely lose the election. 

If that occurred, there would be a one-year bar to trying to re-organize.  Moreover, it would have been the third straight defeat for union organizing efforts at Foxwoods — not a pattern that the unions would like to have publicized.

Perhaps the observation by The Day is correct:

The withdrawal signals a slowing in the momentum that labor unions appeared to have been gaining at Foxwoods ever since the UAW won the right to represent nearly 3,000 poker and table-game dealers in November.

I’ll repeat what I said last fall when the organizing efforts first became public: This event is likely to take several years with lots of ups and downs between now and then.  Right now, both Foxwoods and UAW can claim some victories but the ultimate battles still lie ahead.

Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.Courtesy: Library of Congress (flckr) - "Indians in New York's 4th of July Parade"

A new article by Thomas Meiklejohnone of the attorneys representing the UAW in its battle to represent workers at Foxwoods — in Spring edition of the Labor & Employment Law Quarterly (not online) of the Connecticut Bar Association, sheds some additional light on the subject.

As Meiklejohn acknowledges, "federal law does recognize the sovereign right of a Native American tribe to govern itself with respect to its internal affairs".  Thus, he argues, the question that must be asked is: When can employment laws be enforced against an employer on a tribal reservation?

Meiklejohn suggests three factors ought to be considered:

  1. The Nature of the Employing Entity: Is the employer a branch of tribal government, a commercial enterprise owned by a tribe or a privately owned business operating on a tribal reservation?
  2. Who is Bringing the Action: Is it a federal government agency exercising its authority or a suit by a private party?
  3. The Source of the Legal Claim: Does this dispute involve federal or state law claims?

Meiklejohn argues that it is a fairly settled issue in Connecticut and the Second Circuit that the NLRB has jurisdiction over tribal casinos.  I’ve indicated in prior arguments a bit of Foxwoods’ response to this as well.

Of course, since Foxwoods has planned to appeal the election results to the Second Circuit and beyond, if necessary, we’ll soon see how "settled" this law really is.

One of the bills in Congress this year that is expected to be heavily debated is the Employee Free Choice Act

What is it? Workplace Horizons has this take on it: "The Employee Free Choice Act (H.R. 800; S. 1041) would amend the National Labor Relations Act to make it significantly easier for unions to organize employees, to require binding arbitration of first contracts after 120 days, and to stiffen penalties for certain unfair labor practices."

The AFL-CIO has an alternative take on it: "The Employee Free Choice Act (H.R. 800, S. 1041), supported by a bipartisan coalition in Congress, would level the playing field for workers and employers and help rebuild America’s middle class. It would restore workers’ freedom to choose a union by: Establishing stronger penalties for violation of employee rights when workers seek to form a union and during first-contract negotiations; Providing mediation and arbitration for first-contract disputes; Allowing employees to form unions by signing cards authorizing union representation."

Obviously, how you feel about the proposal depends on whether you think the current system of union elections is broken.

One Connecticut Congressman, Joe Courtney, spoke this morning with the My Left Nutmeg blog with his thoughts on it. During a very interesting and insightful interview with Ken Krayeske, he voiced his strong support for the bill.

The Employee Free Choice Act is critical to make sure people can organize without recourse. It was one of my first speeches on the House floor. …

If you go back to NLRA [the National Labor Relations Act, passed in 1937], a card check was supposed to be the method towards getting union recognition. It was down the road that employers were given the option of requesting an election, moderated by the NLRB.

The law we voted on in the House would say that a union would be recognized with a majority of signature cards signed by members of the bargaining unit. If even a third, thirty-three percent,  The law changed so that employers don’t have the opportunity to mandate an election. Otherwise, these hired guns, consultants come in where there is strong support for union with cards, and they end up turning the election in to a long drawn out process that defeats the election.

Rep. Courtney — who represents District 2, which includes many towns in Eastern Connecticut including where the casinos are located — had particularly strong words about the Foxwoods election.  As readers of this blog will recall, there has also been a heated battle going on with a union election at Foxwoods, including a multi-day hearing that we’ve covered here in many posts

The Foxwoods case is classic as to why this needs to pass. The UAW won that vote 60-40, with a healthy margin.

Then management is coming in there with a big hired gun [in front of the National Labor Relations Board].  They put on days of testimony about what the ballot said, "Do you support this union?"

Management was bringing in employees who claimed they couldn’t read it, and said they had difficulties with the language.. The testimony was comical. The translators that management brought in were at the hearing. Inadvertently, someone would ask a question in English, and they would answer it before the translators could.

These were all card dealers, of course they understand English. But it is a textbook example of how they abuse the system to delay union victories. If you get unions to get the cards, we don’t have to go through these hearings.

Rep. Courtney is a decent fellow and, by all accounts, is doing well representing a difficult district..  But is Rep. Courtney referring to the lawyers who defended Foxwoods as mere "hired guns" that ought to be criticized for defending their clients?

If that’s the implication — and its a bit unclear from the statement — that seems particularly harsh and unnecessary.  Whatever one thinks about Foxwoods (and if you ask 100 people, you’ll get 100 opinions), it’s unfair to challenge the attorneys merely for representing their client.  Our system of justice demands that each party — no matter how disliked — be given a full and fair opportunity.  Foxwoods should be no exception.

Moreover, it’s not like the Foxwoods’ appeal on the language issue was frivolous.  Indeed here, even the Hearing Officer stated that he would’ve handled the election differently and translated the ballots at issue.  Given the high burden of proof necessary to overturn an election, it’s probably not enough to carry the day but we’ll have to wait a few more weeks until the decision on the election is issued.

In the meantime, Rep. Courtney is obviously willing to keep pushing the Employee Free Choice Act.  How far will that battle take him? We’ll just have to wait to find out.  However, even he suggests some excitement ahead: "The Card Check Act, that is the battle to be watching."

(H/T My Left Nutmeg)

Are unions are dying breed? The answer to that question often depends on your perspective.  

As we’ve seen in Connecticut, if unions are "dying", they are not going down without a fight.

But statistics just released by the U.S. Department of Labor tell a more complete story.  The statistics show a leveling off of the decline in union membership that’s been ongoing for the last two decades. 

The percentage of workers who belonged to a union in 2007 was 12.1 percentage, up slightly from the 12.0 percent in 2006.  (For comparison, union membership in 1983 was at approximately 20 percent.)

Indeed, unions can claim a 300,000+ union membership increase in 2007.  The full statistics are available from the U.S. Department of Labor on their website. 

The numbers for Connecticut also tell a noteworthy story:

  • In 2006, 247,000 Connecticut workers belong to a union — or 15.6 percent of the workforce.  This is higher than the national average.
  • That number increased slightly in 2007 to 253,000 workers — also 15.6 percent of the workforce.
  • It is unclear from the survey whether this 6,000 worker increase includes the 2600 dealers who voted to unionize at Foxwoods last fall. As readers know, the election results are being appealed now.

For unions, the numbers in Connecticut show a relatively stable unionized workforce and should give them some solace that they are holding their own. And for employers, the numbers are a good reminder that unions still maintain sizable support in the state. 

Unions may be down overall from where they were decades ago, but they remain an important influence in today’s workplace. Whether the numbers will decrease over time depends on so many factors — including the possible passage of the Employee Free Choice Act — that it would be irresponsible to predict what will happen.

But, the next time you read an article about how unions are going the way of the "horse and carriage", just remember that the statistics don’t tell that story — at least not yet.

The hearing by the NLRB into objections raised by Foxwoods resumed Wednesday with new details about alleged harassment experienced by dealers in the course of the election last fall.  (For background on the objections and the elections, click here.) 

As usual, The Day is quick with the details this morning.  According to the report, one employee testified that after telling co-workers she would be voting "no" in the upcoming election, other dealers harassed her:

On the floor, one blackjack dealer said, “If you were a man I’d kick your (expletive).”

Another dealer told her she was a “backstabber” and was told, “You’ll get what you deserve.”

Another claim that has not surfaced in much detail before (other than in the Tribe’s opening statement) is the claim that there may have been improper campaigning going on.  The Day reports:

Many of the dealers, both men and women, testified that unidentified individuals were polling people in the restroom across from the Sunset Ballroom, where the election was held on Nov. 24.

The individuals, according to several witnesses, were holding a piece of paper and either a pen or pencil. Because some of the dealers were wearing their name tags, they believed the unidentified individuals were recording their name along with their vote.

They presumed the individuals were writing down names of people who did not support the union.

The Tribe is expected to rest their case sometime today at which point the UAW will have an opportunity to call their own witness to refute the testimony presented.  Obviously, as lawyers are apt to say, there’s often two (or three or four) sides to every story so expect to hear some balance to these claims over the next few day. 

For a better idea on what the tribe is claiming in the objections as a whole, I’d also suggest reviewing the Tribe’s opening statement available here

The first day of the hearing into some of Foxwoods’ objections to the November election began on Tuesday. Among 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.

Last week, while many (including myself) were vacationing, the NLRB set a date for a hearing on the objections raised by Foxwoods. I last updated the status in this post.  You can find all the posts about the election here.   

As to the hearing, The Day reports,

A recent decision by the NLRB found that Foxwoods’ claims that the board did not have jurisdiction over the casino and that the ballot failed to list the union’s full name were without merit and were overruled.

But 10 of the 12 objections Foxwoods filed regarding the election remain unresolved, so on Jan. 15 the NLRB will hear testimony from both the United Auto Workers union, which petitioned for the election and right to represent the casino’s roughly 3,000 dealers, and the Mashantucket Pequot Tribal Nation, which owns Foxwoods.

The hearing will focus on the conduct of UAW representatives leading up to the vote, including what Foxwoods claims was the harassment and intimidation of eligible voters who did not support unionization. The NLRB also will examine whether ballots should have been multilingual.

If the NLRB affirms the tribe’s allegation of misconduct, it would force a new election.

Overturning the results of the election are never easy but without evaluating the evidence presented by Foxwoods, it is impossible to evaluate Foxwoods’ likelihood of success.  Perhaps the UAW engaged in some egregious behavior before the election; if so, the results of the election would be set aside, perhaps even on just one valid objection (of the 10 remaining). 

But that’s still a long way off. There will be a hearing, followed by a hearing officer decision and ultimately, a likely appeal to the entire Board.  That process could still take many months (or even over a year given the turmoil at the NLRB itself).  As stated in previous posts, this battle will continue for some time. 

Chips - MorguefileLost 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.