Godfrey & Kahn Indian Nations PresentersDec 05, 2008 · Godfrey & Kahn Indian Nations Presenters Carl Artman is a shareholder and a member of Godfrey & Kahn's Indian Nations Law

Godfrey & Kahn Indian Nations Presenters Carl Artman is a shareholder and a member of Godfrey & Kahn's Indian Nations Law team. Carl was nominated by the President and confirmed by the Senate as the Assistant Secretary of Indian Affairs, a position he held during 2007-2008 until he joined Godfrey & Kahn. He offers a broad range of legal services to Indian Country and has represented

clients in environmental, corporate, emerging technologies, telecommunications and banl

UNIONIZATION OF TRIBAL ENTERPRISES and the EMPLOYEE FREE CHOICE ACT:

NEW CHALLENGES FOR TRIBES IN THE NEXT CONGRESS

A Godfrey & Kahn Workshop

Milwaukee, Wisconsin December 5, 2008

Litigation Update: The status of htigation involving union efforts to organize

tribal enterprises and the tribes' efforts to resist application ofthe NLRA

Tom O'Day Godfrey & Kahn, S.C.

780 N. Water St. Milwaukee, WI 53202

Date: Decern ber 5,2008 8:00a.m.- 900a.m. RegisTrationand ConrlnentalBrealcfast 9:00 a.m, - 300 p.m. Conference 4:00 p.m. - 6 0 0 fxm. RecEptlon at Godfreyft Kalin

Location: IVtilwaukee Athletic Club 7S8 North Broadway, Mllwaukee,WI 53202

Workshop Schedule: 8:00a.m, -9300a.iTi. RegistiationandContlnerTtalBieakfast

9KX)a.in.-9}45a.in. The Outlookon Capital Hill Thepmspectsforpaisageot tie SFCAand potential Isglilatiiteeffortsby irbes to letteise the SonP/tanueldecisbn or(om'lt'ga^Its inpacton vixilsoiteregnty. fresentsr:CatlAnman

9^45 a .m. -10:30 a.m. L Itlgatio n U pdate ThestausofHtigatm invohiingunionetfoits to organim tritxil enterprises anil the tribes' efforts toresistappHcatbnofifietttlRA. ffesenisr. Thomas OVĉ y

10.4S a.m. -12:00 p.m. NLRA The ctfisnt'kiw and bow theEfty, ihreatensiofundcimenallydfninish the rights of empkyers, ncliKiing tribes Presenter: Ron Pfeifer

12300p.m.-12:45 p.m. Bt^ktovIWKh(prwided)

12^45 p.m.-1:30 p^m. Lunch PiesentatlomA Few "Big nctuie"Ot)servatlons The ItlLRA, passedin l9'iS,ll dbKi'Ticniitiorh sstbnccnis wiSfaS? Whaioleccn iribcillswphy? PKsenisrs- RonatiPfefercndiphnSw^rnmer

2:15 p.m.-3300 p.m. Discussion Hovican irbestvorictogetherto mitgats theinptxtofthetiliRAcindtheEFCA?

4:00 p.m. - 6M) p.m. Reception at Godfiey & Kahn

To Register, catlGtoriaWilbtir4U2879321. RegiitrationFee:$7S

Litigation Update

A. San Manuel v. N.L.R.B.

1. National Labor Relations Board Decision

2. Washington D.C. Court of Appeals Decision

B. Attempts to Expand Jurisdiction of Federal Courts Over Tribal Entities Based on San Manuel Decision.

a. Lawrence v. Barona Valley Ranch Resort and Casino, 153 Cal.App.4 1364 (2007).

b. Louis V. Stockbridge-Munsee Community, Case No. 08-C-558 (E.D. Wis. September 16, 2008).

1. Mashantucket Pequot Gaming Enterprise and Intemational Union, UAW, AFL-CIO.

a. Background Facts of Case.

b. Procedural History of Case.

c. Legal arguments advanced by the Mashantucket Pequots.

d. Addressing the San Manuel case within the legal arguments.

e. Agreement to proceed under tribal law.

2. Practical Lessons Learned From Mashantucket Pequot Case.

a. Right to Work Ordinances b. Tribal Labor Laws c. Adjudicative procedures d. General approach to labor relations within tribal framework

3. Recommendations and Discussion

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Milwaukee, Wisconsin December 5,2008

NLRA The current law and how the EFCA threatens to fundamentally diminish the rights of employers,

including tribes.

Ron Pfeifer Godfrey & Kahn, S.C.

333 Main Street, Suite 600 Green Bay, WI 54307

I. THE NATIONAL LABOR RELATIONS ACT - Conducting representation elections since 1935. Today's system:

A. Orderly process involving "authorization cards."

B. Thirty percent (30%) ofthe bargaining imit required; petition to be filed with the National Labor Relations Board. Campaign follows: 40-60 days.

C. Election conducted by the National Labor Relations Board; majority wins.

II. WHAT IS THE PROCESS TODAY AFTER AN EMPLOYER LOSES AN ELECTION?

A. The parties are directed to meet at "reasonable times and places."

B. The parties are directed to "bargain in good faith" to agreement or impasse.

C. The parties may voluntarily use mediation to reach an agreement.

D. A strike may occur or the employer may institute its last best and fmal offer.

III. THE EFCA and COLLECTIVE BARGAINING CHANGES

A. Negotiations to begin within ten days after a request for bargaining.

B. Mediation if, after 90 days of bargaining, the parties have been unable to reach agreement.

C. If, after 30 days of mediation, the parties remain unable to agree, a Board of Arbitration appointed by the FMCS will set the terms ofthe initial contract (two years).

IV. EFCA REMEDIES

A. The NLRB would have the authority to award, besides back pay, two times that amount as "liquidated damages."

B. The NLRB could impose civil penalties of up to $20,000 for each such violation. (Today's remedies are designed to restore the status quo: reinstatement and back pay.)

C. The EFCA proposes no effect on the remedies for imfair labor practices committed by unions, even if they occur during the organizing process.

V. THE VIEWS OF THOSE INVOLVED

A. John Sweeney, President ofthe AFL-CIO: "The most significant proposal in 30 years to protect our most basic and important workplace rights."

B. Labor Secretary Elaine Chao: "A worker's right to a secret ballot election is an intrinsic right in our democracy that should not be legislated away."

VI. WHY THE EFCA?

A. In 1948, 35% of private sector employees were union members; 1976 - 25%; 2008 - 7.5%

B. Unions argue that the current procedure provides too much time for employers to campaign against the union. (In 2007, most elections were conducted within 39 days and 93% of all elections, within 56 days. Of 2,147 elections conducted in 2006, involving 123,000 voters, imions won approximately 56% ofthe contests.)

VII. QUESTIONS LEFT UNANSWERED BY THE EFCA:

A. What would the process be for a decertification campaign?

B. Would employers have a right to appeal an unfavorable arbitration decision?

C. Do employees have the right to strike during arbitration proceedings?

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Milwaukee, Wisconsin December 5, 2008

A FEW "BIG PICTURE" OBSERVATIONS ON THE NLRA

Brian Pierson Godfrey & Kahn, S.C.

780 N. Water St. Milwaukee, WI 53202

A FEW BIG PICTURE OBSERVATIONS ON THE NLRA

I. NLRA BACKGROUND

A. Historical Backdrop: Labor Wars

1. Campaign for 8-hour day, Haymarket Massacre 1886

2. Pinkerton Agents: Shooting War during the Homestead Strike 1892

3. Military Force, e.g., Pullman Strike 1894

4. Organization of strike breaker work forces by entrepreneurs 1890s-1910s

5. Palmer Raids: Anti-foreign, anti-anarchist, anti-union raids by President Wilson's Attomey General in 1919-1921, under Espionage Act of 1917, Sedition Act of 1918, thousands of persons, including many members ofthe Industrial Workers of World, were rounded up and deported or imprisoned, triggered by Russian Revolution, anarchist terrorist attacks in U.S. cities, fear of communist revolution, etc.;

6. Infiltration, spying, dirty tricks, etc.

7. Injunctions against collective actions based on the Sherman Anti-Trust Act. E.g., In re Debs, 158 U.S. 564 (1895), holding Pullman Railway strike illegal;

8. Damage suits, e.g., Loewe v. Lawlor, 208 U.S. 274 (1908) ("Danbury Hatters' Case"), making trade unionists liable for treble damages for losses occasioned by boycotts.

9. Clayton Act in 1914: "Nothing contained in the anti-trust laws... forbids the existence and operation of labor ... organizations"; listing ten "peaceful" and "lawful" labor activities (including strikes and boycotts) that injunctions could not forbid.

10. In 1921, Supreme Court held m Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921), that the act had neither legalized peaceful secondary

boycotts nor immunized them from injunctions. See also. United Mine Workers v. Coronado, 259 U.S. 344 (1922).

B. Norris-LaGuardia (Anti-Injunction) Act of 1932: Act March 23,1932, c. 90, 47Stat. 70, 73, U.S.C, tit. 29,113, 29 U.S.C.A. 113.

1. makes "yellow dog" contracts (i.e., under which a worker agrees, as a condition of employment, not to join a labor union) unenforceable in federal court;

2. establishes right of workers to form unions free of employer interference

3. deprives federal courts of jurisdiction "to issue an injunction against, inter alia, giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence; against assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute; against advising or notifying any person of an intention to do any of the acts specified; against agreeing with other persons to do any of the acts specified"

4. New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938), March 28, 1938. Supreme Court upholds the Act, refuses to accept jurisdiction over employer complaint arising from picketing (Signs reading "Do your Part! Buy Where You Can Work! No Negroes Employed Here!")

C. National Industrial Recovery Act (NIRA), Act of June 16,1933, ch. 90, 48 Stat. 195. (formerly codified at 15 U.SC. § 703)

1. One ofthe defining "First Hundred Days" acts ofthe New Deal.

2. Created the Public Works Administration (PWA), to provide jobs and stimulate the economy. From 1933 to 1935 PWA spent $3.3 billion with private companies for public works.

3. Guaranteed workers' right to organize and bargain collectively but rules were vague

4. Attempted to stabilize prices and wages through cooperative "code authorities" involving government, business, and labor.

5. Allowed business to create a multitude of regulations imposing the pricing and production standards for goods and services.

6. Overturned by a unanimous Supreme Court in Schechter Poultry v. United States, 295 U.S. 495 (1935) on the ground that the NIRA infringed upon states' authority, unreasonably stretched the Commerce Clause, and gave legislative powers to the executive branch in violation ofthe Nondelegation Doctrine (cf challengers to Section 5 ofthe IRA).

II ENACTMENT OF THE NLRA AND AMENDMENTS

A. National Labor Relations Act (Wagner Act), ch. 3 72, 49 Stat. 449, 29 U.S.C. §§ 151 etseq., enacted July 5,1935.

1. Defines "employer" to "include[] any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act (45 U.S.C. § 151 et seq.) as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.

2. Section 7 gives employees "the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection."

3. Lists prohibited unfair labor practices of employers (but not unfair labor practices of unions):

(1) To interfere with, restrain, or coerce employees in the exercise ofthe rights guaranteed in section 7.

(2) To dominate or interfere with the formation or administration ofany labor organization or contribute financial or other support to it: Provided, That... an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.

(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage

membership in any labor organization: Provided, That nothing in this Act or in any other statute ofthe United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees in the appropriate collective bargaining unit covered by such agreement when made.

(4) To discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.

(5) To refuse to bargain collectively with the representatives of his employees.

4. Establishes the National Labor Relations Board (NLRB) with the power to investigate and rule on charges of unfair labor practices and to conduct elections in which workers decide whether they wish to be represented by a union.

5. Constitutionality upheld in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). (The "switch in time that saved nine")

B. Labor Management Relations Act (Taft-Hartley Act) of 194 7, Act of June 23,1947, ch. 120, 61 Stat. 136 etseq., 29 U.S.C. §§ 141-197Amends the NLRA

1. Adds a list of unfair labor practices by organized labor, including:

(1) jurisdictional strikes, i.e., strikes to force employers to assign particular work to represented workers

(2) wildcat strikes, i.e., strikes in violation of terms and conditions of collective bargaining agreements

(3) solidarity or political strikes, (4) secondary boycotts and common situs picketing (i.e. refusal to handle

goods of businesses whose workers are not represented by the union, where the business is associated with the target ofthe union's efforts)

(5) closed shops (the requirement that the employer hire only union members)

2. permitted states to pass "right to work" laws that outlaws provisions in collective bargaining agreements that would require new workers to join the union

3. permitted injunctions to prevent strikes that "imperiled the national health or safety."

4. required union leaders to sign affidavits that they were not communists and were not affiliated with any organization seeking the overthrow ofthe United States

5. Excluded supervisors from coverage as "employees" and permitted termination of supervisors who engage in union activities

6. Confirmed employers' right to oppose unions by non-coercive means

7. Gave the NLRB General Counsel ofthe NLRB discretionary power to seek injunctions against either employers or unions that violated the Act.

III. The NLRA IN THE CONTEXT OF OTHER NEW DEAL LEGISLATION AFFECTING TRIBES

A. Emergency Conservation Work Act, March 31, 1933, included Indian Emergency Conservation Work Program specifically for Indian country; On April 5, 1933, FDR signed Executive Order 6101 which officially established the Emergency Conservation Work Program

B. Indian Reorganization Act June 18, 1934, 25 U.S.C. §§461 et. seq. the "Indian New Deal," end allotment, authorizes new land taken into trust, establishes loan fund, provides for self-governance through reorganization

C. Works Progress Administration, created by Presidential Order and funded by the Emergency Relief Appropriation Act of 1935, April 8, 1935

D. National Labor Relations Act July 5, 1935, Act of July 5, 1935, 49 Stat. 449, 29 U.S.C. §§ 151 etseq.,

E. Social Security Act of 1935, Act of August 14, 1935, ch. 531, 49 Stat. 620, 42 U.S.C. chapter 7; provided benefits to retirees and the unemployed, lump sum death benefits, allocated money to states to assist aged, children and disabled.

F. Housing Act of 1937, Act of September 1, 1937, ch. 896, 50 Stat. 888 et seq., federal housing assistance to low income persons, extended to Indian country in 1963.

G. Fair Labor Standards Act, Act of June 25, 1938, ch. 676, 52 Stat. 1060 et seq., establishes requirement for overtime pay.

IV. T H E C O E U R D ' A L E N E R U L E

A. The Rule

According to the interpretation of Tuscarora first adopted by the Ninth Circuit Court of Appeals and now followed by several others, a federal statute of general applicability does not apply to a tribe if the statute specifically excludes Indian tribes or, if the statute is silent on the issue of applicability to Indian tribes, one ofthe following conditions is met:

1. The law touches exclusive rights of self-governance in purely intramural matters;

2. The application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or

3. There is proof by legislative history or some other means that Congress intended that the law not apply to Indians on their reservations.

Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985). Accord, United States v. Funmaker, ]0F.3dl327, 1330-31 (7th Cir. 1993); Smart v. State Farm Ins. Co., 868F.2d929at 932-933 (7th Cir 1989); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2nd Cir 1996).Florida Paraplegic Association v. Miccosukee Tribe of Indians, 166 F.3d 1126 (11th Cir. 1999).

B. Application ofthe Rule

National Labor Relations Act. San Manuel Indian Bingo and Casino v. National Labor Relations Board, 475 F.3d 1306, (D.C. Cir. 2007). NLRB, however, does not assert jurisdiction over employees who perform govenraiental fimctions. See, Yukon Kuskokwim Health Corporation case.

Occupational Safety and Health Act. Department of Labor v. OSHRC, 935 F.2d 182 (9* Cir. 1991); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2"'' Cir. 1996); 29 C.F.R. § 1975.4(b)(3) (1994). But see, Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (lO"" Cir. 1982) (OSHA did not apply to a Tribal business because it would treaty provisions. Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (lO"" Cir. 1982).

Fair Labor Standards Act. 29 U.S.C. §§ 201-219. In Reich v. Great Lakes Indian Fish & Wildlife Comm 'n, 4 F.3d 490 (?"' Cir. 1993) (but tribes entitled to same special rules for law enforcement

as state have); Chao and U.S. Department of Labor v. Spokane Tribe, 2008 WL 4443821 (E.D.Wash. 2008).

Employment Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 (1988). Smart v. State Farm Insurance, 868 F.2d 929 (7* Cir. 1989); Lumber Industries Pension Fund v. Warm Springs Forest Prods. Indus,, 939 F.2d 683 (9* Cir. 1991). In its 2006 amendment to ERISA, the Congress essentially adopted the Coeur d'Alene rule in determining whether tribe could offer "governmental" plans.

Family and Medical Leave Act, 29 U.S.C. §§2601-2654 (Supp. V. 1993). The Secretary of Labor has adopted the Coeur d'Alene Rule and taken the position that the FMLA does applies to Indian Tribes. 60 Fed. Reg. 2181 (1995).

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1988). The Eighth and Tenth Circuits have held that the ADEA does not apply to tribes because its application would dilute principles of Tribal sovereignty and self-government and violate treaty provisions. EEOC v. Cherokee Nation, 871 F.2d 937 (lO"̂ Cir. 1989); Fond du Lac v. Heavy Eguipment Construction Co ,̂ 986 F.2d 246 (8"* Cir. 1993). The Tenth Circuit stated that is was "exti'emely reluctant to find congressional abrogation of treaty rights absent explicit statutory language." Cherokee Nation, 871 F.2d at 938 (citing U.S v. Dion, 476 U.S. 734 (1986)). In EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9'*' Cir. 2001), the Ninth Circuit, applying the Coeur d'Alene rule, held that that the employment practices at the Karuk Tribe Housing Authority are "purely intramural matters touching on the tribes exclusive rights of self-government."

V. FINAL OBSERVATIONS

Along with Social Security Act and Fair Labor Standards Act, the NLRA, now 73 years old, it is one ofthe a pillars of federal protection of workers.

During the New Deal, tribal governments were recovering from a long period of neglect and decline; In passing legislation. Congress gave little or no thought to the potential impact of federal labor laws on tribes because tribes had few employees and few enterprises; Congress did, however, often enact special provisions for state and municipal governments;

While blanket exemptions from worker protection laws seem unlikely from the labor-friendly 111'*̂ Congress, tribes, as sovereign governments, are different from private employers and should seek the same treatment that Congress gives state and municipal governments.

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Documents

Godfrey & Kahn Indian Nations PresentersDec 05, 2008 · Godfrey & Kahn Indian Nations Presenters Carl Artman is a shareholder and a member of Godfrey & Kahn's Indian Nations Law