The answer is not satisfactory since there is not a clear answer. The lack of clarity in the law reveals a legal argument which declares that the federal union law, the National Labor Relations Act, does not apply to tribal governments and their enterprises. The other legal argument asserts the opposite which is the NLRA applies to tribes. As a result of these competing legal arguments there are at least three practical options. First, if the NLRA applies, your workers may organize or be organized under the NLRA and the persistent eye of the National Labor Relations Board. Second, if the NLRA does not apply to tribes, the tribe may have tribal law which permits collective bargaining and therefore your workers can be organized under the tribe’s laws and whatever oversight entity the tribe defines. Third, if the NLRA does not apply, tribal law (or policy or other act) may prohibit collective bargaining and unions have no right to represent your workers.
These three choices are embedded with risks. Choosing to follow the NLRA or creating tribal law which models the NLRA poses the least risk from an active NLRB but poses the most risk to tribal sovereignty. On the other side of that coin, choosing to define tribal law which rejects the NLRA and collective bargaining exercises sovereignty but invites the most risk. The right answer on risk is a question for every tribe wherein leadership makes decisions based on members’ objectives and an assessment of the unique circumstances of the tribe.
Tribal governments need not stand on the sidelines waiting to see which option is chosen for the tribe, but instead, the tribe can, if it is proactive, have a direct impact on the path it seeks. Tribal inaction likely will not serve the tribe well since the NLRB asserts that it has the power or jurisdiction to require that tribes permit workers to organize and unions have the right to assist. In these uncertain times, what can tribal governments do to minimize the risks associated with unions organizing your workers?
First, treat your workers well and fairly. When you treat your workers well and fairly, tell them they are treated well and fairly. In my experience, tribal employers create jobs which pay well, permit workers to engage in meaningful work, provide excellent health and other benefits and create workplaces which are safe and productive. Are there exceptions to this general rule? Of course there are exceptions and those exceptions provide fodder for union organizers to define you as an employer which does not care for its workers. You need to define you as the fair employer you are before the union organizers define you based on stories told about other tribal employers.
Second, strive to ensure your workers are safe. Union organizers can use the alleged or real lack of a safe work environment to appeal to workers for the need to organize. The answer, provide safe work environments, promote good training and communicate the tribe’s values regarding worker safety.
Third, promulgate an employment code. Sovereignty is just an idea until sovereigns use it to define the rules by enacting laws. When sovereigns write the law, sovereigns are exercising their sovereignty. Move sovereignty from just an idea (a very important idea) to action. When tribal sovereigns fail to act by promulgating tribal labor laws, the NLRB makes a stronger case that federal law applies to the tribe.
Fourth, consider the merits of promulgating a right to work ordinance. Eleven years ago in NLRB v. San Juan Pueblo the federal courts correctly ruled that a tribe can exercise its sovereignty to define the rights of workers if a union represents them. Bottom line, under a right to work ordinance, workers are not forced to join a union and pay dues unless the employee chooses that option.
Fifth, train your management team to recognize union organizing. Are workers engaged in intense conversations in the workplace? Are workers in groups who may not previously engaged in conversations? Do the conversations of these groups go quiet when management enters the room? Are there increased challenges to front line supervisors from emboldened employees? These and other behaviors may signal a workforce which is being organized even though the union representatives are not yet parked in your lobby. Employers can determine whether they are being organized or ripe for an organizing campaign by auditing employment practices and getting a better understanding of employee satisfaction. A penny of prevention may be worth a pound of cure.
Sixth, enhance the integrity of your gaming enterprise by delegating to the gaming commission the authority to license and monitor union officials. Gaming Commissions are asked to protect tribal assets by, in part, licensing employees and vendors who serve the gaming enterprise. Accordingly, whether a vendor provides slot machines, diet cola or consulting services to the gaming enterprise, the Gaming Commission is asked to evaluate the vendor’s integrity and character. Likewise, if a union provides the service of representing workers licensed by the Gaming Commission, the Gaming Commission likely believes that evaluating the integrity and character of the union and its officials is consistent with the Commission’s mandate of protecting tribal assets.
Seventh, define your solicitation policies to reflect the rules flowing from the social networking cases. Because the NLRB is asserting claims against employers when employee handbooks include alleged restrictive policies limiting employee free speech in the workplace, employers should consider modifying policies which too broadly define and too aggressively limit workplace communication regarding the terms and conditions of employment. The NLRB asserts that employees have the right to discuss the terms and conditions of employment under the NLRA even when a union is not presently representing workers.
Eighth, correctly label tribal gaming enterprises to reflect their governmental purpose. Some tribes are taking steps to more clearly show that employees who work for the enterprise are creating revenues which the tribe uses for governmental purposes like health, education and welfare. Some federal courts have failed to recognize the true purpose of a gaming enterprise by missing the link between casino revenue and better health care, education and social services on tribal lands. Some states engage in the lottery to generate revenues which enable states to provide better services for its citizens. Tribes likewise, engage in gaming to generate revenues which provide better services for its citizens while at the same time promoting the self determination of the tribe. This suggestion was the topic of a recent newsletter.
Recommendation: Act now to evaluate your circumstances and determine your goals. Do not wait for outside forces whether those forces are a union or the NLRB to define your options for you. Consider the above respectful suggestions and how they may assist you in achieving your goals.