The Mashantucket Pequot Gaming Enterprise (more widely known as Foxwoods) and the UAW at Foxwoods have issued a joint press release moments ago that they have "reached a historic agreement to negotiate a union contract under Tribal Law, without either party waiving their rights under federal law."

The agreement comes after the parties agreed earlier this month to discuss the matter without waiving rights under federal law.  (For additional background, click here.)

As I indicated in an earlier post, an agreement by the UAW to negotiate under tribal law represents a major victory for Foxwoods in their quest to maintain tribal sovereignty and to have tribal law apply instead of federal law.  However, the agreement to negotiate a union contract still represents a solid victory for UAW because it will effectively end years of potential litigation (with no assurance of a victory at the end either).

According to the joint press release:

 

In resolutions passed Tuesday, the Mashantucket Pequot Tribal Council certified the UAW as the exclusive representative of a unit of table games, poker and dual-rate dealers and addressed other concerns raised by the union.

Both parties recognize the historic significance of this agreement and appreciate the fact that it could not have been accomplished without mutual respect for the legitimate concerns of all affected parties.

While today’s agreement is not a collective bargaining agreement, it permits the negotiations to start. Both parties are optimistic that it will result in a constructive dialogue leading to successful negotiations.

If the parties are unable to reach an agreement within five months, either of the parties has the right to have unresolved issues submitted to binding arbitration under the tribal system which provides for a final decision by a neutral party agreed to by the employer and the union.

I’ll have more details soon as they become available, including expected press comment by Senators Dodd and Lieberman, Attorney General Blumenthal and the NLRB. 

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.

While a generic post today about sick leave might be more appropriate today given my absence for a few days, there are some actual updates in the labor and employment law arena that need telling.

One such story is the ongoing saga in between the UAW and the Mashantucket Pequot Trial Nation, which runs the Foxwoods Resort Casino in Connecticut.

As readers will recall, in mid-July the NLRB issued a new Complaint against Foxwoods for its alleged refusal to bargain with the UAW over a new labor contract.

On late Friday, August 1st, Foxwoods issued its formal answer to the complaint, along with a press release. 

But as longtime readers should know, there really is nothing new in either.  Foxwoods continues to insist that it is willing to bargain with the workers under tribal law, just not under federal law.  Foxwoods continues to insist, as it has from the outset, that tribal sovereignty must apply to it.  And so, its answer was really a mere formality.

Both sides show no sign of deviating from the projected path; the next obvious step will be an appeal in the federal courts of appeal later this year.  Until then, both sides will likely to continue issuing press releases touting one occurrence or another. None of it matters much at this point until the appeal is decided. 

This should come as a surprise to no one, particuarly given my prior posts, but Foxwoods Casino (properly known as the Mashantucket Pequot Tribal Nation) today formally declined to bargain with the UAW over a contract for approximately 3000 table game dealers, setting up an appeal that will focus on sovereign immunity grounds. The Day first broke the story earlier this afternoon.

The Union’s request for bargaining last week can be downloaded here. Foxwoods response today is available here

So, what’s the general gist of the Tribe’s argument declining bargaining?

In our view, the NLRB’s effort to assert jurisdiction over Tribal gaming enterprises constitutes a serious breach by that agency of time-honored commitments made by the federal government to Indian Tribes in statutes and other laws that support and ecourage tribal self government and the building of strong tribal governmental institutions. 

The Tribe also goes on to note that the two presumptive nominees for President — Senator Obama and Senator McCain — have issued statements indicating their strong support for tribal sovereignty (though notably, not about this case). 

The Tribe included additional documents in support of its argument which are available here and here

Because the D.C. Circuit has already decided the San Manuel Casino case last year (which, in essence, allowed the NLRB to have jurisdiction over tribal casino workers), it is unlikely that the appeal will be filed there; instead, look for the Tribe to file in the Second Circuit where they will hope for a different outcome.   An appeal is not expected for at least several more weeks. 

Attorney General Richard Blumenthal issued a statement this afternoon "condeming" Foxwoods’ decision.  Expect an amicus brief or intervenor brief from his office when the appeal is filed, as was done in the San Manuel case. 

Yesterday, I reported that the NLRB had issued a decision certifying the election last fall of the UAW as the bargaining representative of the Foxwoods Casino Table Dealers.

Since that last post, the Mashantucket Pequot Tribal Nation has released a statement indicating that they will, in fact, appeal the decision.

The Day has the details in this report.  (The Hartford Courant’s article is here but lacks the details of The Day’s article.)  The UAW, as expected, has called on Foxwoods to now bargain with it, but Foxwoods has signaled that it will not.

None of this is frankly unexpected.  Until the U.S. Court of Appeals (or the U.S. Supreme Court) decides the issue of sovereign immunity, this case is far from over.

 

 

Leave it to a government agency to release a long-awaited decision right before the July 4th holiday.  Since it is a vacation week, this afternoon’s post will be brief. I’ll followup again when there is more to report, including press statements that are expected to be released on the subject. 

For those first looking for background on the election battles between the UAW and Foxwoods, you can see my prior posts here.

So what’s the news for today? Well, not surprisingly, the NLRB, in a decision officially released on June 30, 2008, certified the election last fall of the table game workers at Foxwoods casino.  You can download the brief decision here.  Much of the decision rests on the evaluation of the objections that Foxwoods raised to the election, and the run-up to the election. The NLRB found that none of the issues raised by Foxwoods warranted a new election.

The decision means that the UAW can now request that Foxwoods begin negotiations and bargaining over a contract. But don’t expect that to happen. Foxwoods can refuse to bargain with UAW, which will just lead to another series of motions and appeals. This decision doesn’t address once of the "big" issues that remain out there: namely, the tribe’s contention that it is protected by the doctrine of sovereign immunity.

As I’ve said before, I would expect this case to continue in litigation until either a federal appellate court rules on the election, or it is appealed all the way to the U.S. Supreme Court.  The UAW certainly passed another hurdle today in its bid to represent workers, but the real battles remain to come.

The Day has covered this story before and I’ve just noticed that they have a brief post today.  Reporter Heather Allen has done an admirable job at providing solid reporting on the subject so I’m sure she’ll also have more in the upcoming days if needed.

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.

The ongoing labor battles at Foxwoods took an interesting turn on Friday.  For the second time in a month, a group of workers at Foxwoods rejected efforts by a union to represent them.

This time, it was the off-track betting workers who decided that they did not want the United Auto Workers (UAW) to represent them.  It was a small group to be sure — only 40 workers in the eligible group — but the election was not that close: 13 voted in favor, 23 voted against (with 4 not voting).

Foxwoods was understandably pleased, as reported in The Day:

”We are very pleased that another group of employees has shown faith in Foxwoods management and their continued efforts to keep Foxwoods as a great place for employees and guests,” said Foxwoods President Barry Cregan in a prepared statement. “I am very pleased with the way our Race Book team members have conducted themselves.”

Given the UAW’s victory in November to organize the poker and table game dealers (prior coverage here), it’s loss here is a bit surprising.  Does this signal a shift in momentum? Much to early to tell, but it can’t be a good sign for the unions that workers have rejected two efforts by unions to represent them in less than a month.

As for UAW’s efforts to organize the poker and table game dealers, that efforts remains mired in appeals.  After the ALJ’s decision, Foxwoods filed its exceptions to the decision in late March, which is available here. The union filed its response (not available online) and the parties are now awaiting a board decision.   Even after that decision, further appeals are likely. 

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.