III. GENERAL OBSERVATIONS
IV. SUMMARY OF THE ORDINANCE
The importance of the labor relations issue for Indian gaming in California (and elsewhere) cannot be overstated. It was the issue of unionization that provided much of the fuel for the battle over Proposition 5, the most expensive election proposition in history.
The Tribal-State Gaming Compact signed by 59 California Indian Tribes and the State of California attempts to end this battle. The Compact provides that it is "null and void" if a tribe has "not provided an agreement or other procedure acceptable to the State" dealing with unionization. In other words, the legality of Indian gaming in California is conditional on a tribe establishing a mechanism for the unionization of its employees. A tribe is not free to develop its own measures relating to unionization. It must participate in the state-wide labor relations scheme created by the Ordinance. There is no provision for tribes to develop their own labor relations policies. Uniformity is required.
On September 14, 1999 the Agua Caliente Board of Cahuilla Indians was the first California tribe to satisfy this condition by adopting the Tribal Labor Relations Ordinance. (A copy of the Ordinance is available at www.pechanga.net) 2. While at least one tribe has refused to sign a Compact because of the Ordinance, a substantial number of other tribes have adopted the Ordinance, which is certain to be advanced by union supporters as a model for labor relations at Indian casinos in other states, especially as compacts come up for renewal.
The Ordinance provides labor unions at Indian casinos with a number of advantages over unions at non-Indian gaming facilities, which are subject to the National Labor Relations Act ("NLRA"). Most importantly, under the Ordinance unions at tribal casinos:
- have the right to enter onto casino property at any time to talk to employees and post leaflets and posters there in order to facilitate the organizing of employees; and
- may engage in secondary boycotts after an impasse is reached in negotiations without suffering any penalty under the Ordinance.
The Ordinance also provides tribes with certain advantages not enjoyed by employers under the NLRA. Most importantly, unions representing tribal casino employees may not strike, picket or engage in boycotts before an impasse is reached in negotiations.
Gaming is a labor intensive business. The larger hotel-casinos in Las Vegas and Atlantic City each employ thousands of employees. Because of their large number of employees and, in the formative period of gaming in the 1950's and 1960's, a history of arbitrary management treatment of employees, the hotel-casinos in Las Vegas were an attractive target for unions and the major properties both there and in Atlantic City are highly unionized. The union representing the largest group of employees in Las Vegas, Local 226 of the Hotel Employees and Restaurant Employees International Union, has over 50,000 members and in recent years has been the fastest growing local union in the country. While most hotel-casino employees (e.g., hotel employees, food and beverage employees, parking attendants, slot mechanics, and change persons) are unionized, no dealers or "cage" employees are represented by unions in Nevada or Atlantic City.
Neither the National Labor Relations Act, which governs labor relations in non-Indian casinos, nor state labor laws, apply to Indian gaming operations, and tribes operating casinos both in California and elsewhere have resisted extension of these laws to tribal casinos on the ground that submission to them would violate tribal sovereignty. Some have contended that both the NLRA and similar state laws are products of an industrial era and assume the inevitability of conflict between an employer and employees, which is inconsistent with Indian culture and tradition.
On September 13, 1999 (the last day for a tribe to adopt the Ordinance), the Viejas Bank of Kumayaay Indians outside of San Diego signed a collective bargaining agreement with the Communications Workers of America, the first such agreement in the United States. It is unclear what effect, if any, the Ordinance will have on this agreement, which was negotiated without the union being certified under the terms of the Ordinance.
The Ordinance is the product of a compromise between powerful forces, including:
1. the public policy of providing economic support for Indians from non-tax sources through Indian gaming;
2. the drive by the State of California to reclaim some of the economic benefit it had forfeited to Nevada by blocking the expansion of gaming in California 3;
3. the expectation of employees working at Indian casinos that they will have the same rights as employees working at non-Indian enterprises;
4. the need and desire by many tribes to maintain and expand their gaming operations; and
5. the wish by other interested parties in the gaming business (most importantly, Nevada gaming companies and unions representing their employees) to create, at a minimum, a "level playing field" by eliminating the competitive advantage enjoyed as a result of the non-union status of California's Indian casinos.
The Ordinance attempts to transpose the basic provisions of the NLRA to a tribal setting. It does so in a piece-meal fashion, however, and, as a result, there are substantial gaps which could have been corrected by inclusion of a provision comparable to California Labor Code Section 1148, but were not. The Ordinance also contains misleading (or at least confusing) provisions (such as Sections 6(2) and 10) and outright errors (e.g., there is no such organization as the "American Academy of Arbitrators" referred to in Section 13 (c)(1) and the phrase "other terms and conditions of employment" in Section 6(2) makes no sense). Hopefully, some of these problems will be corrected in a revised Ordinance.
1. Tribal casinos and "related facilities" (e.g., hotels and restaurants) which have:
(a) 250 or more employees 4; and
(b) entered into a compact.
2. The Ordinance applies to all persons employed by covered tribal casinos or related facilities except:
(a) supervisors (as defined in the NLRA);
(b) tribal Gaming Commission Employees;
(c) security employees (other than persons repairing and maintaining equipment);
(d) cage and other employees involved in cash counting; and (e) dealers.
These exclusions follow the lines of union organization in hotel-casinos in Las Vegas and Atlantic City. Thus, while dealers are eligible to unionize under the NLRA, the principal unions in Las Vegas and Atlantic City have not attempted to unionize dealers and no casino employees other than slot mechanics, change persons, and food and beverage employees working in casinos are unionized.
Persons covered by the Ordinance are considered "eligible employees."
If a tribe was not operating a casino on September 10, 1999 and later opens one, it may delay adoption of the Ordinance until one year after it employs 250 or more employees.
B. Protected Rights of Employees and Unions
The Ordinance recognizes the same employee rights as the NLRA (i.e., the right to support unions, to negotiate collective bargaining contracts, to strike, or to refrain from these activities). In addition, unions have the right:
1. to come into a casino and "related facilities" (e.g., restaurants or hotels) for the purpose of organizing during "non-work time in non-work areas;" 5
2. to post leaflets and other materials on employee bulletin boards; and
3. to obtain a list of employees' names and home addresses upon presenting evidence that at least thirty percent of employees support the union.
C. Free Speech
The Ordinance recognizes the same free speech rights for tribes and unions as are protected under the NLRA. As a result, tribes and unions may freely express their views opposing or supporting unionization so long as they do not threaten or promise benefits.
D. Unfair Labor Practices (ULP's)
1. Tribal ULP's
The Ordinance makes it an unfair labor practice for a tribe 6 to:
(a) interfere with employees' rights under the Ordinance;
(b) control or support a union financially;.
(c) discriminate against employees because they file charges or testify under the Ordinance; and
(d) refuse to bargain with a union.
These are largely the same ULP's as exist under the NLRA, except that Section 8 (a) (3) of the NLRA (which prohibits employer discrimination against employees because of union activity) is omitted. Since every discriminatory act by an employer also is an unfair labor practice under Section 8 (a) (1) of the NLRA (which is included in the Ordinance as Section 5(1)), this omission should not have any practical effect, but it is unclear why Section 8 (a) (3) was omitted from the Ordinance.
The Ordinance permits tribal casinos to give Indian preference in employment decisions such as hiring and promotion, so it would not be an unfair labor practice for a tribe to promote a tribal member over a known union supporter.
2. Union ULP's
The Ordinance makes it a ULP for a union to:
(a) interfere with employees' rights under the Ordinance;
(b) engage in a strike or boycott unless an impasse has been reached in negotiations;
(c) force an employer to recognize a union if another tribe has been certified as their representative;
(d) refuse to bargain with an employer; and
(e) attempt to influence the outcome of tribal elections.
The prohibition on strikes and boycotts (which also would preclude picketing) except where an impasse has been reached in collective bargaining is not as significant as it might appear, since such strikes are uncommon. More important is the failure to prohibit secondary boycotts after impasse has been reached. Secondary boycotts are outlawed under the NLRA and permitting them in contract negotiations (when they are most likely to occur) gives unions at Indian casinos a significant advantage they do not have at non-Indian casinos. The failure to provide persons injured by secondary boycotts with a remedy for money damages (comparable to Section 303 of the Labor Management Relations Act) compounds the employer's disadvantage under the Ordinance. 7
E. Representation Elections
1. Elections Required?
The Ordinance is unclear as to whether a secret ballot election is required for a union to represent employees. Section 10 is titled "Secret Ballot Election Required," but nothing in Section 10 or anywhere else in the Ordinance provides that elections are the only manner by which unions can gain recognition. Thus, despite the title to Section 10, nothing in the Ordinance makes it unlawful for a union to seek recognition without an election or for a tribe to recognize a union which has not been certified after winning a secret ballot election. 8
The question of whether elections are required for a union to become the representative of a unit of employees is of tremendous importance. In Las Vegas, unions have used "card checks" to gain the right to represent large numbers of employees without an election by getting employees to sign "authorization cards" indicating support from a majority of employees. Unions almost always prevail in card checks, while they win less than 50 percent of secret ballot election under the NLRA. Thus, the availability of card checks is critical to unions' ability to organize employees subject to the Ordinance. The only other comprehensive California labor relations law covering private employers, the Agricultural Labor Relations Act, requires secret ballot election conducted by a State agency.
(a) Election procedure
(i) The election process is initiated by a union submitting authorization cards signed by at least 30 percent of the employees in a bargaining unit to the Election Officer (a member of the Tribal Labor Panel, which is a new State agency created by the Ordinance).
(ii) The bargaining unit (i.e., the group of employees eligible to vote in the election) is determined by the Tribal Labor Panel.
(iii) The Election Officer determines the fairness of the election, which may be appealed to the Tribal Labor Panel. If either the tribe or the union engages in misconduct that interfered with the election, the Officer may order a re-run election. If the tribe commits serious unfair labor practices and wins the election, the union becomes the employees' representative even though a majority of employees have voted against the union if it can demonstrate that it represents a majority of employees before the election.
If a union loses an election, it is barred from invoking the provisions of the Ordinance at the casino where the election occurred for one year. While this clearly would bar the union from seeking an election during that year, the terms of the Ordinance also would bar it from filing unfair labor practice charges, a situation that is hard to justify and does not exist under the NLRA.
F. Negotiating Collective Bargaining Agreements
The provisions on negotiating collective bargaining contracts between a tribe and a union generally follow the NLRA, again with some differences favorable to unions:
1. The NLRA restricts bargaining to "wages, hours and other terms and conditions of employment." The Ordinance contains no limitation on the scope of bargaining but leaves it to the Tribal Labor Panel to determine what subjects are bargainable, so that a union could insist on negotiating as to such management decisions as the selection of supervisors, unless the Panel rules otherwise.
2. If no agreement is reached on a contract, the Ordinance permits a union not only to strike but to engage in a secondary boycott. Thus, a union would not violate the Ordinance if, after an impasse was reached in the negotiations, it went to a supplier or a trucking company delivering goods to a tribal casino and picketed there to force the supplier or trucker to cease doing business with the casino. This provision makes it possible for a union to shut down an Indian casino not because its employees support the union but because the union can shut down its suppliers. The reason the NLRA prohibits secondary boycotts is that they are so effective and broaden, rather than contain, the impact of labor disputes. While the Ordinance does not provide any protection against secondary boycotts, relief might be available under the NLRA.
3. If a negotiating impasse is reached, the dispute is referred to a designated tribal forum. If no agreement is reached there, a union may strike.
The Ordinance establishes a new state-wide agency to administer it: the Tribal Labor Panel. The Panel consists of ten arbitrators mutually selected by the "parties." It is unclear who the "parties" are. Are they the tribes and the unions? If so, which tribes? Which unions? While the State of California is a party to the Compacts, is it a "party" for the purpose of selecting arbitrators?
The Panel oversees all disputes relating to elections and unfair labor practices. Its decisions can be appealed to the Tribal Court or to federal or state court.
H. Resolution of Disputes
The Ordinance establishes a mandatory dispute resolution procedure which has three levels:
1. First level:
The first level is a "designated tribal forum such as a tribal council, business committee or grievance board." The Ordinance does not specify who designates the forum - the tribe, a union, the state or some other party. All disputes as to unfair labor practices, union organizing and elections, and the discharge of employees must be submitted to the designated tribal forum. As to employee discharges, it is unclear whether this is limited to discharges for union activity (as it is under the NLRA) or extends to terminations for any reason. The Ordinance only requires contract negotiation disputes after impasse has been reached to be taken to the first level. After the first level, a union is free to strike, picket (not on Indian land), or boycott.
2. Second Level:
The second level for resolving disputes is the Tribal Labor Panel, acting either through one member or a three member panel.
3. Third Level:
The third level is the Tribal Court, which reviews decisions of the Tribal Labor Panel. The Tribal Court's decision is appealable to federal court or state court, as to which the tribe is required to waive its sovereign immunity.
I. Enforcement of Collective Bargaining Agreements
The purpose of collective bargaining is the negotiation of an enforceable contract between an employer and the union representing its employees. While federal and state laws provide a means for the enforcement of labor contracts, there is no such provision in the Ordinance and it is unclear whether these provisions would be applicable to tribal collective bargaining agreements. Other federal laws (25 U.S.C. Section 81) require the approval of contracts "relative" to tribal land by the Secretary of the Interior and the Commissioner of Indian Affairs. It is unclear whether this provision would apply to a collective bargaining contract, but if such a contract deals (as most labor contracts do) with such matters as access by union representatives to employees while at work, it would seem clearly to be "relative" to tribal land. 9
The consequences on non-compliance with 25 U.S.C. Section 81 are severe: the entire contract is void and unenforceable. Accordingly, it would seem prudent for the parties to tribal labor contracts to seek Secretarial approval. Under the NLRA, the federal government does not review and approve the terms of labor contrasts and its likely involvement in the review of tribal labor contracts could have a significant impact on the dynamics of bargaining at Indian casinos.
Like all new legislation, the Ordinance is filled with ambiguity and uncertainty. By far the most important open question is whether an election is required before a tribe may recognize a union. Hopefully, this and other problematic elements of the Ordinance will be clarified and corrected in a revised Ordinance.
Even if the more obvious problems are resolved, the Ordinance will present California's tribes with substantial challenges. In conditioning tribal gaming upon acceptance of such a measure, the Ordinance is a dual assault on tribal sovereignty: it is legislation imposed by non-tribal authority and it is designed to foster unionization, which will be a continuing countervailing force to tribal management. 10
The threat of criminal penalties for failing to agree to legislation to facilitate unionization is unprecedented. Not only does it violate California tribes' power to control one of the most critical parts of their businesses, but it imposes a statewide uniformity that prevents tribes from adopting labor relations measures that they view as best suited for their situations. In doing so, it robs non-Indians of what could have been a valuable laboratory for experimenting with alternatives to the sixty year old rules of the National Labor Relations Act.
1 Presentation on September 27, 1999 to the International Association of Gaming Attorneys, Paradise Island, Bahamas
2 California Indian Gaming News. This website is an invaluable source of information on Indian gaming.
3 Undoubtedly, the massive participation by Nevada gaming companies in the contest over Proposition 5 is, at least in part, responsible for this belated recognition. One can only speculate as to the reaction of Nevada voters to a comparable attempt by California interests to intervene in Nevada affairs.
4 It appears that all persons employed in a casino (i.e., dealers and other persons not considered "eligible employees") are counted in determining whether the Ordinance is applicable.
5 The tribe may require the union and union organizers to be licensed.
6 If a tribe contracts out the management of a casino on tribal land so that a non-tribal entity is the employer, it is unclear whether that employer would be governed by the Ordinance or the NLRA.
7 A remedy for damages may be available under federal law if (as is likely) the Union engaged in the boycott is covered by the National Labor Relations Act.
8 Compare with California Labor Code ' 1153(b), which makes it unlawful for an agricultural employer to recognize an uncertified union and ' 1154(h) which makes it unlawful for an uncertified union to picket an agricultural employer to gain recognition.
9 Since the Ordinance gives unions access rights to casino employees on tribal land, it is possible that labor contracts at Indian casinos will not deal with access, but union access under the Ordinance is limited to "the purposes of organizing" and so would not seem to be applicable once a contract was negotiated.
10 A bill (H.R. 2992) has been introduced in Congress by Representative J. D. Hayworth of Arizona to preclude states from requiring tribes to adopt labor relations measures as part of tribal-state gaming compacts.