[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
H.R. 986, TRIBAL LABOR SOVEREIGNTY
ACT OF 2017
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MARCH 29, 2017
__________
Serial No. 115-12
__________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
VIRGINIA FOXX, North Carolina, Chairwoman
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Duncan Hunter, California Virginia
David P. Roe, Tennessee Ranking Member
Glenn ``GT'' Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Brett Guthrie, Kentucky Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Lou Barletta, Pennsylvania Jared Polis, Colorado
Luke Messer, Indiana Gregorio Kilili Camacho Sablan,
Bradley Byrne, Alabama Northern Mariana Islands
David Brat, Virginia Frederica S. Wilson, Florida
Glenn Grothman, Wisconsin Suzanne Bonamici, Oregon
Steve Russell, Oklahoma Mark Takano, California
Elise Stefanik, New York Alma S. Adams, North Carolina
Rick W. Allen, Georgia Mark DeSaulnier, California
Jason Lewis, Minnesota Donald Norcross, New Jersey
Francis Rooney, Florida Lisa Blunt Rochester, Delaware
Paul Mitchell, Michigan Raja Krishnamoorthi, Illinois
Tom Garrett, Jr., Virginia Carol Shea-Porter, New Hampshire
Lloyd K. Smucker, Pennsylvania Adriano Espaillat, New York
A. Drew Ferguson, IV, Georgia
Brandon Renz, Staff Director
Denise Forte, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
TIM WALBERG, Michigan, Chairman
Joe Wilson, South Carolina Gregorio Kilili Camacho Sablan,
David P. Roe, Tennessee Northern Mariana Islands
Todd Rokita, Indiana Ranking Member
Lou Barletta, Pennsylvania Frederica S. Wilson, Florida
Rick W. Allen, Georgia Donald Norcross, New Jersey
Jason Lewis, Minnesota Lisa Blunt Rochester, Delaware
Francis Rooney, Florida Carol Shea-Porter, New Hampshire
Paul Mitchell, Michigan Adriano Espaillat, New York
Lloyd K. Smucker, Pennsylvania Joe Courtney, Connecticut
A. Drew Ferguson, IV, Georgia Marcia L. Fudge, Ohio
Suzanne Bonamici, Oregon
C O N T E N T S
----------
Page
Hearing held on March 29, 2017................................... 1
Statement of Members:
Sablan, Hon. Gregorio Kilili Camacho, Ranking Member,
Subcommittee on Health, Employment, Labor and Pensions..... 6
Prepared statement of.................................... 7
Walberg, Hon. Tim, Chairman, Subcommittee on Health,
Employment, Labor and Pensions............................. 1
Prepared statement of.................................... 3
Statement of Witnesses:
Brown, Mr. Nathaniel, Delegate, 23rd Navajo Nation Council,
The Navajo Nation.......................................... 19
Prepared statement of.................................... 21
Cladoosby, Mr. Brian, President, National Congress Of
American Indians, and Chair, Swinomish Indian Tribal
Community.................................................. 8
Prepared statement of.................................... 11
Gribbon, Mr. John, California Political, Director, UNITEHERE!
International Union, AFL-CIO............................... 25
Prepared statement of.................................... 27
Welch, Mr. Robert J. Jr., Chairman, Viejas Band of Kumeyaay
Indians.................................................... 31
Prepared statement of.................................... 33
Additional Submissions:
Mr. Cladoosby:
Letter dated April 12, 2017, from National Congress of
American Indians....................................... 61
Courtney, Hon. Joe, a Representative in Congress from the
State of Connecticut:
Letter from UAW Local 2121............................... 65
Mr. Gribbon response to questions submitted for the
record................................................. 95
Lewis, Hon. Jason, a Representative in Congress from the
State of Minnesota:
Letter dated March 29, 2017, from the Chamber of Commerce
of the United States of America........................ 68
Mr. Sablan:
Letter dated March 27, 2017, from United Steelworkers
(USW).................................................. 70
Letter from International Labor Office (ILO)............. 72
Letter dated March 28, 2017, from International Union of
Operating Engineers.................................... 75
2010 Blackfeet Tribal Employment Rights Ordinance and
Safety Enforcement Act of 2010......................... 76
Questions submitted for the record.......................92, 94
Scott, Hon. Robert C. ``Bobby'', a Representative in Congress
from the State of Virginia:
Prepared statement of.................................... 78
Chairman: Walberg:
Slide: Protecting Tribal Sovereignty..................... 5
Prepared statement from the Morongo Band of Mission
Indians................................................ 82
Prepared statement of Hon. Larry Romanelli, Ogema, Little
River Band of Ottawa Indians........................... 85
H.R. 986, TRIBAL LABOR SOVEREIGNTY
ACT OF 2017
----------
Wednesday, March 29, 2017
House of Representatives
Committee on Education and the Workforce,
Subcommittee on Health, Employment, Labor, and Pensions
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Roe, Rokita, Allen,
Lewis, Mitchell, Smucker, Ferguson, Sablan, Wilson of Florida,
Norcross, Blunt Rochester, Shea-Porter, Espaillat, and
Courtney.
Also Present: Representatives Foxx and Scott.
Staff Present: Bethany Aronhalt, Press Secretary; Andrew
Banducci, Workforce Policy Counsel; Ed Gilroy, Director of
Workforce Policy; Jessica Goodman, Legislative Assistant;
Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk;
Geoffrey MacLeay, Professional Staff Member; John Martin,
Professional Staff Member; Dominique McKay, Deputy Press
Secretary; James Mullen, Director of Information Technology;
Krisann Pearce, General Counsel; Alissa Strawcutter, Deputy
Clerk; Joseph Wheeler, Professional Staff Member; Tylease Alli,
Minority Clerk/Intern and Fellow Coordinator; Austin Barbera,
Minority Press Assistant; Michael DeMale, Minority Labor
Detailee; Denise Forte, Minority Staff Director; Nicole Fries,
Minority Labor Policy Associate; Christine Godinez, Minority
Staff Assistant; Stephanie Lalle, Minority Press Assistant;
Kevin McDermott, Minority Senior Labor Policy Advisor; Richard
Miller, Minority Senior Labor Policy Advisor; Veronique
Pluviose, Minority General Counsel; and Elizabeth Watson,
Minority Director of Labor Policy.
Chairman Walberg. A quorum being present, the Subcommittee
on Health, Employment, Labor, and Pensions will come to order.
Good morning to everyone here today, the committee as well
as our witnesses, and those attending to hear what is going on.
We thank you.
I would like to begin by extending a warm welcome to our
distinguished panel of witnesses, including leaders of tribal
governments. We are fortunate to have you all with us today,
and look forward to hearing from you.
This hearing is about one basic principle: the sovereign
rights of Native Americans must be protected. A simple
statement, it is a simple principle. There are complex things
surrounding it, but we hope to sort some of those out today.
This core principle is woven deep into the fabric of our
shared history. It is part of who we are as a society, and has
long defined the unique government-to-government relationship
that exists between the United States and independent tribal
nations.
What does tribal sovereignty mean? It means that Native
American tribes have a fundamental right to self-govern. They
have a right to self-determination. They have the freedom to
advance their own economic policies in the pursuit of
prosperity for tribal members.
Bipartisan support for tribal sovereignty has been
reaffirmed time and time again in Congress, and for more than
180 years, the Supreme Court has held that tribes possess a
nationhood status and retain inherent powers of self-
government.
Unfortunately, the National Labor Relations Board has taken
a number of alarming steps in the past decade that have created
widespread concern in the Native American community and
threatened Tribal sovereignty as we know it.
For nearly 70 years, the Board respected Native American
sovereignty, and did not apply its jurisdiction under the
National Labor Relations Act over tribes. The reason was
simple. While the NLRA provides important protections for
workers, it is a private sector labor law that specifically
excludes state, local, and federal governmental employees.
Congress recognized the differences between public and
private sector employment, so it afforded every level of
government the freedom to determine its own labor policies, but
that all changed in 2004 with its San Manuel Bingo & Casino
decision, where the Board suddenly reversed course.
It abandoned long-standing precedent and began using an
arbitrary test to determine when and where to exert its
jurisdiction over Native American tribes.
The Board's move understandably sparked outrage within the
Native American community. In fact, the Chairman of the
Mashantucket Pequot Nation testified before this very committee
saying the Board's decision was, and I quote, ``an affront to
Indian Country.'' He added, and I quote again, ``It suggests
that Indian Tribes are incapable of developing laws and
institutions that protect the rights of employees.''
We also heard from the Lieutenant Governor of the Chickasaw
Nation, one of the largest tribes in the country. He testified
that tribal sovereignty is, I quote, ``a profound issue of
national importance that cannot be left in the hands of an
admittedly inexpert Federal agency.'' I could not agree more.
The NLRB has no expertise in Indian law, and has no
business meddling in the affairs of Tribal Nations, but the
aggressive approach we have seen from unelected bureaucrats at
the NLRB has only grown worse. A series of inconsistent and
misguided decisions have created significant legal confusion
for Native Americans and tribal-owned businesses.
In order to prevent future NLRB overreach, Congress must
pass the Tribal Labor Sovereignty Act. The legislation would
amend the National Labor Relations Act to clarify that the law
does not apply to businesses owned and operated by Native
American tribes and located on tribal land.
This will ensure that tribes receive the same treatment as
States and local governments when it comes to policies
impacting their workforce.
I want to thank our colleague, Todd Rokita, for championing
this legislation, and I would like to point out that this
legislation is not about union workers versus non-union
workers. What this legislation is about is very simple, it is
about the fundamental principle that tribal governments are
sovereign and are free to self-govern.
Congress now has the opportunity to reaffirm this principle
and follow through on our promise to the Native American
community.
I hope we can have a thoughtful discussion today on how we
can further our commitment to protecting tribal sovereignty.
I will now yield to my friend, Ranking Member Sablan, for
his opening remarks.
[The statement of Mr. Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on
Health, Employment, Labor and Pensions
This hearing is about one basic principle: The sovereign rights of
Native Americans must be protected.
This core principle is woven deep into the fabric of our shared
history. It is part of who we are as a society and has long defined the
unique government-to-government relationship that exists between the
United States and independent, tribal nations.
What does tribal sovereignty mean? It means that Native American
tribes have a fundamental right to self-govern. They have a right to
self-determination. And they have the freedom to advance their own
economic policies in the pursuit of prosperity for tribal members.
Bipartisan support for tribal sovereignty has been reaffirmed time
and time again by Congress. And for more than 180 years, the Supreme
Court has held that tribes possess a nationhood status and retain
inherent powers of self-government.
Unfortunately, the National Labor Relations Board has taken a
number of alarming steps in the past decade that have created
widespread concern in the Native American community and threatened
tribal sovereignty as we know it.
For nearly 70 years, the board respected Native American
sovereignty and did not apply its jurisdiction under the National Labor
Relations Act over tribes. The reason was simple. While the NLRA
provides important protections for workers, it is a private sector
labor law that specifically excludes state, local, and federal
government employers.+
Congress recognized the differences between public and private
sector employment, so it afforded every level of government the freedom
to determine its own labor policies. But that all changed in 2004. With
its San Manuel Bingo & Casino decision, the board suddenly reversed
course. It abandoned long-standing precedent and began using an
arbitrary test to determine when and where to exert its jurisdiction
over Native American tribes.
The board's move understandably sparked outrage within the Native
American community. In fact, the Chairman of the Mashantucket Pequot
Nation testified before this very committee, saying the board's
decision was ``an affront to Indian Country.'' He added that it
``suggests that Indian tribes are incapable of developing laws and
institutions that protect the rights of employees.''
We also heard from the Lieutenant Governor for the Chickasaw
Nation--one of the largest tribes in the country. He testified that
tribal sovereignty is a ``profound issue of national importance that
cannot be left in the hands of an admittedly inexpert federal agency.''
I couldn't agree more. The NLRB has no expertise in Indian law and has
no business meddling in the affairs of tribal nations.
But the aggressive approach we've seen from unelected bureaucrats
at the NLRB has only grown worse. A series of inconsistent and
misguided decisions have created significant legal confusion for Native
Americans and tribal-owned businesses.
In order to prevent future NLRB overreach, Congress must pass the
Tribal Labor Sovereignty Act. The legislation would amend the National
Labor Relations Act to clarify that the law does not apply to
businesses owned and operated by Native American tribes and located on
tribal land. This will ensure that tribes receive the same treatment as
states and local governments when it comes to policies impacting their
workforce.
I want to thank our colleague Todd Rokita for championing this
legislation. And I'd like to point out that this legislation is not
about union workers versus non-union workers. What this legislation is
about is very simple. It is about the fundamental principle that tribal
governments are sovereign and are free to self-govern. Congress now has
an opportunity to reaffirm this principle and follow through on our
promise to the Native American community.
______
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mr. Sablan. Thank you very much, Mr. Chairman, for holding
today's hearing on H.R. 986, the Tribal Labor Sovereignty Act,
and I would also like to wish a good morning and a welcome to
all of our witnesses today.
The effect of this legislation would be to strip employees
who work at businesses owned and operated by an Indian tribe
and located on Indian lands of the protections afforded by the
National Labor Relations Act.
This bill deals with a dispute between the sovereign rights
of Native American tribes and the rights of workers to organize
and bargain collectively. However, this bill does not reconcile
these competing interests, but rather strips hundreds of
thousands of workers of their rights.
I am a Chamorro, one of the indigenous people of the
Marianas, and fully appreciate the importance of tribal
sovereignty for Native Americans.
I also believe deeply in workers' rights to organize, to
collectively bargain, and to protect their right to fight for a
safe workplace, fair pay to provide a living for themselves and
their families, and good benefits.
To be fair, legislation and Labor Board decisions must
balance these competing principles, and not favor one at the
expense of the other. That is precisely what happened in the
San Manuel Indian Bingo & Casino decision, where a Bush-era
Labor Board by a bipartisan 3-1 vote asserted jurisdiction over
a tribal casino on tribal lands.
Using a template widely accepted by the federal courts, the
Board stated it would exercise jurisdiction over commercial
tribal enterprises, unless doing so would ``touch exclusive
rights of self-government in purely intramural matters'' or
``abrogate rights guaranteed by treaty.''
In the San Manuel decision, the Board noted a distinction
between commercial tribal enterprises that employ a substantial
number of non-Indians and cater to a non-Indian clientele
versus traditional tribal services or governmental functions.
At least 75 percent of employees at tribal casinos are non-
tribal members, and in some cases, as few as one percent of the
employees are members of the tribe operating the casino. They
have no say in the decision making of tribal governments.
There has been criticism of the San Manuel decision.
However, the NLRB applied the same criteria as has been applied
to other laws of general applicability, such as the
Occupational Safety and Health Act (OSHA), the Fair Labor
Standards Act, and many criminal statutes.
For that reason, it is not surprising that multiple appeals
courts have upheld San Manuel. Last year, the Supreme Court
declined two petitions to overturn San Manuel.
Federal labor law and tribal sovereignty can comfortably
co-exist at tribal casinos without stripping workers of their
rights under the National Labor Relations Act.
As will be explained by a witness, some unions have
consented to being governed by Tribal Labor Relations
Ordinances, because these tribes adopted a mutually agreeable
labor ordinance that protects workers' rights to join a union,
and establishes a neutral dispute resolution panel.
The important point being, however, is that if these tribal
ordinances were amended in the future, these workers would
still be protected by the NLRA. Tribal labor ordinances can be
a workable option only if (1) they provide protections
substantially equivalent to those afforded by the National
Labor Relations Act, and (2) the NLRA exists as a backstop.
I want to thank the witnesses for taking the time to
prepare their testimony and traveling to be here with us today.
I also want to recognize one of the tribal casino workers, Mary
Elizabeth Carter, who works at the Cache Creek Casino in Yolo
County, California, and is a member of UNITEHERE!.
I yield back my time, Mr. Chairman.
[The statement of Mr. Sablan follows:]
Prepared Statement of Hon. Gregorio Kilili Camacho Sablan, Ranking
Member, Subcommittee on Health, Employment, Labor and Pensions
Thank you Mr. Chairman for holding a legislative hearing on H.R.
986, the Tribal Sovereignty Act.
The effect of this legislation would be to strip employees, who
work at businesses owned and operated by an Indian tribe and located on
Indian lands, of the protections afforded by the National Labor
Relations Act.
This bill deals with a dispute between the sovereign rights of the
Native American tribes and the rights of workers to organize and
bargain collectively.
However, this bill does not reconcile these competing interests,
but rather strips hundreds of thousands of workers of their rights
I am a Chamorro, one of the native people of the Northern Marianas,
and fully appreciate the importance of tribal sovereignty for Native
Americans.
But I also believe deeply in workers' right to organize, to
collectively bargain, and to protect their right to fight for a safe
workplace, fair pay to provide a living for themselves and their
families and good benefits.
To be fair, legislation and labor board decisions must balance
these competing principles, and not favor one at the expense of the
other. That is precisely what happened in the San Manuel Indian Bingo
and Casino decision, where a Bush-era Labor Board (by a bipartisan 3-1
vote) asserted jurisdiction over a tribal casino on tribal lands. Using
a template widely accepted by the federal courts, the Board stated it
would exercise jurisdiction over commercial tribal enterprises, unless
doing so would ``touch exclusive rights of self-government in purely
intramural matters'' or ``abrogate rights guaranteed by treaty.''
In the San Manuel decision the Board noted a distinction between
commercial tribal enterprises that employ a substantial number of non-
Indians and cater to a non-Indian clientele versus traditional tribal
services or governmental functions.
At least 75% of employees at tribal casinos are not tribal members,
and in some cases, as few as 1 percent of the employees are members of
the tribe operating the casino. They have no say in the decision-making
of tribal governments.
There has been criticism of the San Manuel decision. However, the
NLRB applied the same criteria as has been applied to other ``laws of
general applicability'', such the Occupational Safety and Health Act,
the
Fair Labor Standards Act and many criminal statutes. For that
reason, it is not surprising that multiple Appeals Courts have upheld
San Manuel. Last year, the Supreme Court declined two petitions to
overturn San Manuel.
Federal labor law and tribal sovereignty can comfortably co-exist
at tribal casinos, without stripping workers of their rights under the
NLRA. As will be explained by a witness, some unions have consented to
being governed by Tribal Labor Relations Ordinances because these
tribes adopted a mutually agreeable labor ordinance that protects
workers' right to join a union and establishes a neutral dispute
resolution panel. The important point, however, is that if these tribal
ordinances were amended in the future, the workers would still be
protected by the NLRA.
Tribal labor ordinances can be a workable option only if (1) they
provide protections substantially equivalent to those afforded by the
NLRA and (2) the NLRA exists as a backstop.
I want to thank the witnesses for taking the time to prepare their
testimony and traveling to be here with us today. I also want to
recognize one of the tribal casino workers, Mary Elizabeth Carter, who
works at the Cache Creek Casino in Yolo County California, and is a
member of UNITE HERE. I yield back my time.
______
Chairman Walberg. I thank the gentleman. Pursuant to
Committee Rule 7(c), all members will be permitted to submit
written statements to be included in the permanent hearing
record, and without objection, the hearing record will remain
open for 14 days to allow such statements and other extraneous
materials referenced during the hearing to be submitted for the
official hearing record.
It is now my pleasure to introduce our distinguished panel
of witnesses, beginning with the Honorable Brian Cladoosby, who
is president of the National Congress of American Indians, and
chairman of the Swinomish Indian Senate. Welcome.
The Honorable Nat Brown, who is delegate to the Navajo
Nation Council. Welcome.
Mr. John Gribbon is the California Political Director of
the UNITEHERE! International Union. Welcome, Mr. Gribbon.
The Honorable Robert J. Welch is chairman of the Viejas
Board of Kumeyaay Indians. We welcome you as well.
I will now ask our witnesses to stand and raise your right
hand, if you would.
[Witnesses sworn.]
Chairman Walberg. Thank you. You may be seated. Let the
record reflect the witnesses answered all in the affirmative.
Before I recognize you to provide your testimony, let me
briefly explain the lighting system, and make that very brief.
It is like the stop lights that we generally honor. I am only
speaking for myself there. When it is green, keep going. You
have five minutes during that green segment. When it turns
yellow, that means a minute is left, so go faster, and do not
push it to orange. When it turns red, complete your sentence,
your basic thought. We appreciate that. There will be plenty of
opportunity to expand on that as we ask questions.
Now, I would like to recognize our first witness, Chairman
Cladoosby.
TESTIMONY OF BRIAN CLADOOSBY, PRESIDENT, NATIONAL CONGRESS OF
AMERICAN INDIANS, AND CHAIR, SWINOMISH INDIAN TRIBAL COMMUNITY
Mr. Cladoosby. Good morning, Chairman Walberg, Ranking
Member Sablan. It is an honor to be here with you and your
distinguished members of the subcommittee to talk about a very
important subject that is near and dear to the hearts of many
tribes, all tribes across the nation, and we are here to voice
our strong support of H.R. 986, the Tribal Labor Sovereignty
Act of 2017.
The Tribal Labor Sovereignty Act is a simple fix that adds
``Tribes'' to the definition of ``governmental entities exempt
from the National Labor Relations Act of 1935.'' In doing so,
the legislation reinforces a critical part of Congress' efforts
to support governmental parity for tribal governments and
respect for sovereignty of tribal governments.
I want to start by saying that Indian Country does not view
this as a fight between tribal governments and labor. In many
tribal communities across the country, tribal governments and
unions work hand in hand to improve the working conditions of
Indian and non-Indian workers.
We greatly appreciate the significant contributions that
unions have made, not only in Indian Country, but across the
United States.
Where tribal sovereignty is undermined or threatened in any
way, we have no choice but to take a strong stand. This is what
has happened in the National Labor Relations Board application
of the NLRA to tribes. When the NLRA was enacted in 1935 to
address growing upheavals in private industry, Congress
exempted all government employers and all government owned and
operated businesses from the act and the reach of the NLRB.
The act does not specifically exempt the District of
Columbia, U.S. Territories, and tribal governments, but the
Board consistently interpreted the government exemption to
include tribes and these other governments.
Until 2004, for 70 years, the Board reversed a long-
standing interpretation that declared that Congress intended
the act to apply to tribal governments. With that decision, the
Board upended 70 years of precedent, and unilaterally
disregarded tribal labor law and made tribal governments the
only governments in the United States subject to the NLRA.
With the Tribal Labor Sovereignty Act, Congress resolves
any question about whether the NLRA applies to tribal
governments and affirms sovereign governmental rights of Indian
tribes to make their own labor policies that govern their own
governmental employees.
Sovereignty means that these decisions must be left to the
tribes, not federal bureaucrats, just as 90,000 other units of
governments across the United States make these decisions for
their employees.
I've discussed what the Tribal Labor Sovereignty Act does,
now let me take a moment to describe what it does not do. The
legislation will not expand tribal jurisdiction outside that
allowed to other sovereigns. It will not create union free
zones on Indian lands. The bill only applies to employers who
are first, tribal governments, and second, who operate on their
own lands.
For private sector employers located on Indian lands, the
legislation would have no effect or application. The
legislation would simply restore the intent of Congress that
tribal governments should not be treated as private sector
employers under the NLRA.
Applying a private sector model to force collective
bargaining over all conditions of employment under the threat
of protected strikes is a formula for destabilizing any
government. Giving an outside party the power to call a strike
of a government's workforce is counter to the very concept of
sovereignty, and requires that a governmental employer choose
between surrendering its sovereign right to enact laws or being
shut down by work stoppages.
This is particularly problematic for tribal governments who
lack an effective tax base and are required to engage in
economic activity to raise revenue and fund local programs and
services.
As a result, for many tribal governments, tribal
agriculture, energy, gaming operations, timber operations, and
other tribal enterprises constitute the sole source of
governmental revenues used to fund essential governmental
services. Unlike private businesses, no government can safely
shut down its enterprise operations because of labor disputes.
Tribal police and fire departments, our schools and hospitals,
our courts and our tribal legislatures must stay open to
provide governmental services to our citizens.
Thus, passage of the Tribal Labor Sovereignty Act is
consistent with Congress' initial intent to exempt governmental
employers from the National Labor Relations Act.
In conclusion, I want to reiterate that Indian tribes
support strong relationships with their employees. The Tribal
Labor Sovereignty Act builds upon the principle that when
Tribal sovereignty is respected and acknowledged, successful,
accountable, and responsible governments and economies follow.
Thank you for your commitment to maintaining the integrity
and effectiveness of tribal governments, and for guarding
against actions that would deny to those governments the same
rights accorded to other state and local governments. Thank you
very much, Mr. Chairman and ranking member.
[The statement of Mr. Cladoosby follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. I thank the gentleman. Now, I recognize
Delegate Brown for his testimony.
TESTIMONY OF NATHANIEL BROWN, DELEGATE, 23RD NAVAJO NATION
COUNCIL, THE NAVAJO NATION
Mr. Brown. Yaateeh, Chairman Walberg, Ranking Member
Sablan, and members of the Committee. My name is Nathaniel
Brown, 23rd Navajo Nation Council. I am sitting here on behalf
of Navajo Nation president, Russell Begay. He apologizes for
not being able to testify, but he had other obligations that he
could not get out of.
However, thank you for this opportunity to present
testimony on H.R. 986, the Tribal Labor Sovereignty Act of
2017. Let me start off by stating that we support this
legislation as well as the companion bill in the Senate, S. 63.
The bill is a step in the right direction towards honoring our
sovereignty and self-determination.
We are a sovereign nation. We have been here since time
immemorial. We have signed treaties with Spain, Mexico, and the
United States in 1868. We continue to honor the Treaty of 1868,
which is approaching its 150th anniversary.
We also have the inherent right to self-determination and
self-governance. In exercising these principles, the Navajo
people have created and developed our own government made up of
executive, legislative, and judicial branches. Our executive
and legislative leaders are elected by the Navajo people. Our
judicial branches are appointed by the president of the Navajo
Nation and confirmed by the legislative branch, similar to the
federal government.
We also develop, pass, and execute our own laws. When we
pass laws, we expect these laws shall govern that our laws are
not superseded or pushed aside by the laws of another
governmental entity, including the federal government.
We are not asking for special treatment. We want the same
treatment as the federal government and states. If they are
able to self-govern and be self-determined with regard to the
NLRA, so should we.
The NLRA was passed in 1935, and at that particular time,
Indian tribes may not have been considered in many pieces of
legislation. It was probably not even contemplated that the
NLRA might have jurisdiction over Indian Tribes until 1976, in
the Fort Apache Timber Company matter.
It has been a long time coming, more than 80 years, and we
have the opportunity to resolve this issue. We also need
clarity and certainty. In 1976, the NLRB took one position,
holding that tribal governments and tribal enterprises were
exempt from the NLRA. However, in 2004, the NLRB reversed their
position in San Manuel Indian Bingo & Casino, and held that the
Board has jurisdiction over tribally-owned enterprises. A
different Board took a different view of the law and what facts
should apply.
Boards have also been consistent in its approaches in
applying NLRA to Indian tribes. H.R. 986 can provide a level of
certainty so that the NLRB can have a consistent view even if
Board members change from time to time.
Furthermore, a troubling trend that we see in NLRB
decisions is that when Indian tribes and their enterprises are
not doing what is considered traditional tribal or governmental
functions, they will be regulated. If we become more involved
in commercial activity, we will be regulated.
We need to get away from this type of thinking in the
federal government. In today's world, Indian tribes have to get
involved in a commercial world in order to help fund a
continuous shortage of federal funding to provide needed
services on the reservation. An Indian tribe's use of tribal
enterprise in a commercial arena to help fund needed services
should not be used to hamper or punish the Indian tribe.
The Navajo Nation does have unions that operate on the
reservations. The Navajo tribal government has entered into
three collaborative bargaining agreements under our Division of
Public Safety, our Executive Branch, and Head Start Department.
From my understanding, there are some private sector/labor
union agreements in place for employees on the Navajo Nation. A
worker's right to join a union is protected pursuant to our
Navajo Preference and Employment Act. We understand some tribes
may have laws that are different than ours, but our ultimate
message is that each Indian tribe should be able to determine
its own direction on labor issues, as well as other issues.
In conclusion, thank you for holding this hearing. Again,
we support this legislation because it supports our sovereignty
and self-determination. It will also greatly simplify and
provide clarity to this issue. We appreciate the leadership of
this subcommittee, and look forward to working with the
chairman and ranking member to pass this important legislation.
Ahehee.
[The statement of Mr. Brown follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. Thank you, Delegate Brown. Mr. Gribbon,
welcome, and you have five minutes of testimony.
TESTIMONY OF JOHN GRIBBON, CALIFORNIA POLITICAL DIRECTOR,
UNITEHERE! INTERNATIONAL UNION, AFL-CIO
Mr. Gribbon. Good morning, Mr. Chairman, and members. Thank
you for inviting me to testify today. My name is Jack Gribbon.
I serve as the political director for UNITEHERE! in California.
Our union represents hotel and casino workers in the United
States and Canada, about 275,000, including 7,000 workers in
tribal casinos in California.
Accompanying me here today is Mary Elizabeth Carter, a
member of UNITEHERE!, who is employed at the Cache Creek Casino
and Resort owned by the Yocha Dehe Band of Wintun Indians in
California.
It is my hope to cover four points during my oral
testimony. The first would be the importance of the National
Labor Relations Act and the fundamental rights to free speech
and free association.
Second would be why tribal employers versus state and local
government employers are not analogous.
Third, Tribal Labor Relations Ordinances and their
inadequacy absent the National Labor Relations Board, and then
finally, the real life positive outcomes for workers and their
families as the result of free expression and freedom of
association.
The importance of the NLRA jurisdiction: it is important to
understand that the tribal gaming industry has become a $28
billion per year industry nationally. In California, it's an $8
billion industry. The Las Vegas strip by example is a $6
billion a year industry.
Title VII of the Civil Rights Act of 1964 has been held not
to apply to Indian tribes. The only way employees of tribal
enterprises subject to harassment and other forms of
discrimination may speak out about them with any degree of
safety is through the NLRA. It is important to note that the
decision of the NLRB under San Manuel was a measured decision.
It would not interfere with tribal rights of self-governance in
purely intramural matters. It would not abrogate rights
guaranteed by treaty, and it would not be contrary to the
congressional intent.
Some argue that employees of tribal enterprises should be
treated like employees of state and local governments. However,
the National Indian Gaming Association has stated 75 percent of
workers at tribal casinos are not members of the owner tribe,
75 percent of the workers nationally. In California, it's much,
much higher than that because we have tribes who have very
small enrolled memberships, so it's upwards of 85 to 90 percent
of the workers are not members of the tribe. They cannot
petition the government of the tribe. They cannot elect
chairpersons or tribal members of the tribal Council. They do
not have any influence over that.
Contrary to that, local and state employees do. They have
the right and they take advantage of that right, and they have
protected their free speech rights and they have bargained over
their wages and their benefits and other issues of employment
with their employers, because they have the right to be
involved politically with their government.
The 85 to 90 percent of the workers at tribal casinos in
California do not have the right to do that in Indian Country,
nor should they, because they are not enrolled members of the
tribes.
The other issue that we should talk about here is the
inadequacy of the Tribal Labor Relations Ordinances. There are
many Tribal Labor Relations Ordinances (TLRO) in compacts in
California. There are six different ones, at least. I think
there are more than six different ones, but at least six.
There are examples of TLROs that are not neutral, nor do
they implement free speech or free association rights, and in
particular, the Tribal Labor Relations Ordinance implemented by
the Saginaw Chippewa Tribe in Michigan prohibited employees
from forming or joining a union. It was also a firing offense
for any employee to solicit for any purpose in any place.
Finally, my last point here is a real-life issue. Because
of the rights that the NLRA provides for tribal casinos in
California, and because of the work of our union and the
organizing of the workers at those casinos, workers like Mary
Elizabeth Carter, who is with me today, who has been working at
Cache Creek since 2013, has been able to support her family,
help her husband get through electrician's school, keep her
four children with health care, and put herself through school.
That is because of the work that we have done, and that is what
the real story is here in my view.
[The statement of Mr. Gribbon follows:]
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Chairman Walberg. Thank you, Mr. Gribbon. I recognize
Chairman Welch for your five minutes of testimony.
TESTIMONY OF ROBERT J. WELCH, JR., CHAIRMAN, VIEJAS BAND OF
KUMEYAAY INDIANS
Mr. Welsh. Good morning. My name is Robert Welch, Jr., I am
chairman for the Viejas Band of Kumeyaay Indians. Thank you for
allowing me to testify today regarding H.R. 986 and its
importance to our tribal members, employees, and tribal
sovereignty.
The Viejas Band owns and operates Viejas Casino & Resort,
which is the source of 99 percent of the government revenue
used to fund initial services and programs, including
education, health, housing, and public safety.
The Viejas Casino & Resort provides over 1,600 jobs to our
wonderful employees and annually contributes millions of
dollars to the local economy. Tribal gaming has made self-
determination and economic self-sufficiency a reality for
Viejas.
H.R. 986 is about respecting the sovereignty of tribes and
affirming that they possess the same power as federal, state,
and local governments to regulate labor relations on sovereign
lands. H.R. 986 would reverse the NLRB's overreach under its
2004 San Manuel decision, when it ignored 30 years of precedent
to rule that the NLRA applies to Tribes.
Opponents of H.R. 986 characterize the measure as anti-
union and argue that the NLRA is essential to protect the
rights of employees. That is not true, and the history of labor
relations of Viejas shows why.
Viejas would not be as successful without the good people
who work for us, many of whom have been employees for over a
decade. In August 1998, long before anyone believed the NLRA
applied to tribes, Viejas entered into a voluntary election
agreement in January 1999. CWA was elected as the bargaining
representative for approximately 30 percent of the Viejas
Casino & Resort workforce. Soon thereafter, a collective
bargaining agreement was ratified.
Every stage of the process, from organizing to contract
ratification, reflected an intelligent sovereign decision by
Viejas to capably regulate labor relations on its reservation.
None of the procedures were compelled or forced upon Viejas.
In September 1999, Viejas formally codified its labor
relations law in the form of a Tribal Labor Relations
Ordinance, TLRO, and has amended it since then with additional
protections for employees and labor organizations.
The TLRO is similar to the NLRA in that it includes access
to elections, and unfair labor practice and dispute resolution
provisions. It necessarily differs, however, in matters that
are unique to Tribal gaming, including recognition of Indian
hiring preference, the exclusion of certain employee
classifications from organization, the ability to require a
labor organization to secure a gaming license, and the
resolution of labor disputes through binding arbitration.
Substantially similar TLROs have been adopted by over 70
tribes in California and unions have spoken in support of the
TLROs before the California legislature.
TLROs have worked for over 17 years. Unfortunately, Viejas'
sovereignty, TLRO, and employment practices are currently under
attack by the NLRB. The old adage ``no good deed goes
unpunished'' best describes the NLRB's current enforcement
action, which involves Viejas' payment of bonuses to
represented employees in December 2015, bonuses that Viejas had
no obligation to pay at all.
In early 2015, Viejas and the UFCW negotiated a collective
bargaining agreement, and Viejas offered to include annual
bonuses in the agreement, but UFCW rejected the offer,
insisting instead upon larger annual wage increases.
Ultimately, the ratified agreement contained wage increases but
no bonuses.
2015 was a more successful year for Viejas Casino & Resort
than expected. Viejas was able to pay bonuses to its
unrepresented employees as budgeted, but also wanted to reward
its represented employees for a year's success. Viejas decided
to treat both groups of employees fairly.
Since represented employees had already received their
larger negotiated pay increases earlier in the year, paying
them a gratuitous bonus meant Viejas needed to pay
unrepresented employees an additional bonus amount in order to
equalize overall annual compensation.
Viejas' reward for the discretionary bonus was a NLRB
enforcement action, which Viejas has been defending for the
past 14 months at considerable expense.
This case is now before the Board following an ALJ ruling
that Viejas violated the NLRA. If the NLRB affirms the ruling,
Viejas will be forced to seek review before the Ninth Circuit
and potentially the U.S. Supreme Court.
The passage of H.R. 986 would immediately halt NLRB
intrusion into tribal labor relations, and would save money for
the U.S. taxpayers and tribes from ongoing and future
litigation.
In conclusion, H.R. 986 is about protecting tribal
sovereignty. Tribes have proven they can best develop laws to
protect the rights of employees and also facilitate tribal
government gaming operations and government services.
They run just like federal, state, and local governments.
The tribe should not be treated as second class citizens--
second class governments, excuse me. I do believe freedom of
speech is covered under the First Amendment.
Viejas respectfully requests that Congress enact H.R. 986.
Thank you for listening to my testimony today, and I stand
ready to answer any questions you may have.
[The statement of Mr. Welch follows:]
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Chairman Walberg. Thank you, Chairman. I thank each of the
witnesses for doing pretty well in keeping to the time frame.
That is not always the case here.
Now, I have the privilege to recognize the chairwoman of
the Full Education and the Workforce Committee, Dr. Foxx.
Mrs. Foxx. Thank you, Mr. Chairman. I want to thank our
witnesses today, and I also want to thank Mr. Rokita for
introducing this bill and for the bipartisan support that he
has obtained for it.
Delegate Brown, at its core, this bill is about protecting
the sovereign rights of Indian Nations. It is about protecting
Native Americans from special interests who are less concerned
about the sovereign rights of tribal members and more concerned
with expanding union membership and filling union coffers.
Some of those special interests claim that the workers
affected are generally not tribal members. At Navajo
enterprises, are most of the workers Navajo? Also, in your
experience, are most unions run and staffed by members of the
Navajo Nation?
Mr. Brown. Thank you, Chairwoman Foxx, for the question.
The unions, the Navajo Nation enterprises, the Navajo Nation
Tribe, the majority of our employees are Navajo. For the
sovereignty and for the union, our employees are protected with
unions, and we also have ``for cause'' requirements for
disciplinary actions. This is how our employees are protected.
In meeting with some of the unions last week, they
appreciate the function and the protection of the unions within
the Navajo Nation. Thank you.
Mrs. Foxx. Thank you very much. Chairman Welch, I am also
concerned about the same way the organizations opposing this
bill are misrepresenting how these commercial enterprises
operate, as well as have the revenue they generate or utilize.
Chairman Welch, it is my understanding that tribes use the
revenues from their businesses to support core services
provided by the tribal governments, such as public safety and
infrastructure.
How are revenues from your government owned businesses used
by the Viejas?
Mr. Welsh. We use the money we receive to fund our
government programs, such as health, education, and fire
departments, whatever we need to do on the reservation. Also,
we are very generous on donating money to the surrounding
communities, especially the Town of Alpine, the schools that
our children go to.
It's very important for us as Indian people to give back.
There was a time when we were very, very poor, and we have a
history of giving. So, when we were blessed with money, we made
sure the surrounding community was taken care of, which is very
interesting, because in Alpine--my mother was born in 1940. She
went to public schools in Alpine. They had, as in the South,
processed drinking water for Indians and white people, and that
didn't deter us when we made money.
We decided that the Town of Alpine was our partner, and we
have funded a lot of their Kiwanis Clubs, et cetera.
Mrs. Foxx. Thank you, Mr. Chairman. I yield back.
Chairman Walberg. I thank the gentlelady, and now I
recognize the ranking member, Mr. Sablan.
Mr. Sablan. Thank you very much, Mr. Chairman. I serve on
another committee that also has oversight over Native
Americans, Native Alaskans, Native Hawaiians, and the
Territories. In this committee, we recently had a hearing on
the state of Indian schools, BIE schools.
I agree that you need all the money you can to upgrade the
education and health services provided to your people. I do not
disagree with that.
Let me ask, Mr. Gribbon, if I may, if H.R. 986 was enacted,
are there any provisions that would prevent tribes from
weakening or eliminating their existing labor laws?
Mr. Gribbon. No. However, there's a couple of different
issues here. One is that the existing collective bargaining
agreements are not throughout all of tribal casinos in
California, or across the country, nor are they in place in a
variety of other industries, like mining, in some places.
Without the NLRA, the National Labor Relations Act, which
would be exempted by this bill, H.R. 986, without that, there's
not the incentive to work out these Tribal Labor Relations
Ordinances, in my view, and in my experience.
Then again, some of these Tribal Labor Relations Ordinances
have led to collective bargaining agreements that increased
wages and benefits for workers, that have worked well in
partnership with tribes that we work with.
Some of them are not adequate, like the one I mentioned
from the Saginaw Chippewa Tribe. Some of them, like the
majority of them in California, are extremely weak, ones that
were negotiated in 1999 by the Gray Davis Administration, then-
Governor Gray Davis, not one worker has organized under those
TLROs.
So, without it, without the NLRA, there isn't a continued
ability to be able to improve TLROs, and moreover, every time
there's a new governor, you know, it depends on who he or she
is, what kind of position they're going to take with respect to
that part of the compact.
Mr. Sablan. So, without the National Labor Relations Act,
there is really no backstop of protection for workers is what
you are saying?
Mr. Gribbon. It's an absolute foundation.
Mr. Sablan. Let me ask the witnesses, if I could just get a
yes or no answer, I would appreciate it, the witnesses who are
here to support the bill, are you saying that for the
sovereignty of Indian Country, the National Labor Relations Act
should not apply because of the sovereignty? Is that across the
board or just for your tribes? For your individual tribes? Yes,
across the board or just for your Tribe?
Mr. Cladoosby. Yes.
Mr. Sablan. Yes to which one, just your tribe, or do you
speak for all Native Americans?
Mr. Cladoosby. The National Congress of American Indians
advocates for 567 Tribal Nations, and we have three conferences
a year, and at those conferences, we have an opportunity to
pass resolutions.
One of the resolutions that was passed unanimously, and we
are a consensus organization, was to support this legislation,
so that's where our marching orders come from.
Mr. Sablan. Because you as a tribe are sovereign?
Mr. Cladoosby. Yes.
Mr. Sablan. So, why is it there are tribes with casinos who
go to great length and extent to deny tribes without casinos a
license? Are they not also sovereign tribes that you represent
today?
Mr. Cladoosby. Denied a license?
Mr. Sablan. Denied a casino license. They come to Congress
and lobby. Are they not as sovereign as each one of you here?
Mr. Cladoosby. Yes.
Mr. Sablan. Then why do you lobby Congress to deny them a
casino license? Why can they not get the same thing you have?
Mr. Cladoosby. I'm not sure what you're referring to,
Congressman.
Mr. Welsh. May I try?
Mr. Sablan. Yes, please. I do not have much time, but
please.
Mr. Welsh. It all depends on the situation. In California,
if they're trying to do off reservation gaming, then I can see
why other tribes would try to stop them from getting licensure,
because that's not what's in the compact or what the state
voted for, what California voted for.
As for H.R. 986, I cannot speak for any other tribe in the
United States other than my own, if I was able to, I would say
yes, but it is a yes for my tribe.
Mr. Sablan. Thank you. I appreciate that. Thank you.
Chairman Walberg. I thank the gentleman. The gentleman's
time has expired. I now recognize myself for five minutes of
questioning.
Chairman Cladoosby, your testimony mentions that the
National Congress of American Indians is the oldest, largest,
most represented tribal government organization in the Nation.
Suffice it to say the NCAI represents a wide variety of tribal
governments, and on a wide range of issues.
On the question of tribal sovereignty and assertion of
jurisdiction by the National Labor Relations Board over tribal
commercial operations, let me ask you, is there a consensus
among your members, even beyond what you just alluded to in the
previous answer?
Mr. Cladoosby. Yes, definitely so. You know, in a nutshell,
we didn't ask for this relationship with Congress, we inherited
it. Every one of you Congressmen sitting up there--
Chairman Walberg. Some of us have inherited it, too.
Mr. Cladoosby. Yes. We both inherited this relationship,
and you are our trustee. We've always been recognized, even in
the Constitution, as sovereigns, and that's all we want to be
recognized as. I can't imagine if the NLRB took any of the
other 90,000 governments and told them they no longer are
protected by this, they have to abide by different rules, what
kind of rush to this hearing you would have.
We just want to be treated as sovereigns, as other
governments. We've heard it loud and clear from our membership
at NCAI, and we're an organization that advocates for tribes,
and they give us our marching orders through resolutions, to
come here to let you know that we wholeheartedly support H.R.
986.
Chairman Walberg. These are long-standing hard fought
battles over the decades and decades as well that we are
dealing with here in the issue of sovereignty. I appreciate
that.
Delegate Brown, I understand the Navajo Nation hosts
private sector businesses like defense contractors and mining
operations on your lands that employ a good number of Navajo
citizens. Could you tell us about these in a little bit of
detail?
Mr. Brown. Thank you, Chairman Walberg, for your question.
With some of the private sector, including Peabody, SRP and
such, they currently have unions where they are protected, and
they enjoy this protection. It creates a voice for them within
the Navajo Nation.
Chairman Walberg. So, you are not creating union free zones
in these cases?
Mr. Brown. No.
Chairman Walberg. Those are private entities that have the
good opportunity to work, to the benefit of both, Navajo Nation
as well as their own interests, and unions are afforded that
opportunity?
Mr. Brown. Yes.
Chairman Walberg. I just wanted to get that point, this
bill does not create union free zones, neither do your efforts
and involvements with these private sector contractors, et
cetera. Thank you.
Chairman Welch, you spoke about costly litigation under the
NLRA. Can you expand on how tribal enterprises which provide
funds for tribal government services are threatened by long,
drawn out litigation under the NLRA, and also, how this differs
from your previous Tribal Labor Relations Ordinances?
Mr. Welsh. Because we have to go through the NLRB process,
which is kind of expensive for us, and we have done all our
research on NLRA and NLRB for the judgments. It seems like they
always favor the unions.
So, if that happens, we have the right to appeal, and for
the appeal, we have to go up the ladder, which will cost us
significant dollars that could be spent on our tribe and for
whatever we need to provide a better lifestyle for our members,
and also could affect the team members who work for us.
Chairman Walberg. Thank you. Now, I recognize the gentleman
from New Jersey, Mr. Norcross.
Mr. Norcross. Thank you, Chairman, appreciate the time, and
certainly bringing this issue to light. I find it fascinating
going through the different laws that we passed over the years
that do apply.
I would like to start my questioning with the Honorable
Brian Cladoosby. This issue you find offensive to the sovereign
nation, and I can understand what you are saying. The Fair
Labor Standards Act, OSHA, they apply to you. Do you feel that
is also an attack on your sovereignty?
Mr. Cladoosby. Thank you, Congressman. Thank you for the
question. Yes, as sovereign nations, there are still certain
things that we have to abide by when it comes to federal law,
not state law, but when it comes to holding us to a different
standard, you have governments in your districts, and if those
governments were treated differently by the NLRA, you would
hear it loud--
Mr. Norcross. I understand. Why is this more offensive to
you than let's say ERISA, that protects pensions and
retirements? Why is this more offensive?
Mr. Cladoosby. Treated differently. We are a government. I
think all the members up here would recognize that we are
sovereigns, we are nations, we are governments.
Mr. Norcross. I understand that. Why is this different than
all the others that apply to you, and why are you not trying to
change those also?
Mr. Cladoosby. We would love to. We would love to be
treated as true sovereigns, to be self-sustaining, to be under
the arm of a paternalistic form of government that was placed
upon us over the last 200 years, but unfortunately, you know,
that is not going to happen.
Mr. Norcross. I understand. We have both inherited this.
Mr. Cladoosby. Yes.
Mr. Norcross. Decisions made by people who came before us
puts us into a position. When the NLRA was first passed, I do
not think we had the issue before you of having tens of
thousands of employees working for casinos. It is a very
different world now.
So, Mr. Gribbon, let me ask you, why is this different? Is
this the traditional conversation we have, employer versus
employee? Is that why this is different?
Mr. Gribbon. Well, it seems that way to me, but one of the
issues that I think is important to understand here, the Kaiser
Family Foundation has put out a report, separate and apart from
anything that my union has proposed, and contrary--I shouldn't
go there. The bottom line is the average difference per year
for a casino worker in California, depending upon whether they
are union or not union, is about $8,000 a year.
Now, these are very, very successful casinos, and very
successful casinos in California, an $8 billion a year
industry, but workers standing up for supporting their families
with health care and with decent wages, it does have a cost, it
does have a financial cost. It's one they deserve to be able to
struggle for.
Mr. Norcross. So, what I am hearing is it is a cost issue
for the employee, and I heard great things about what the
profits go for, certainly things that we all care about.
Delegate Brown, I appreciate you had card checks for many
of the unions that operated it on you. Why is this different
for you than it is for all the other casinos? Is it because the
percentage of employees are actual tribal members?
Mr. Brown. Thank you, Mr. Norcross, for your question. With
Navajo, yes, the majority of the employees are Navajo.
Mr. Norcross. They get card check recognition. You have a
higher percentage, you gave them card check; you have a very
low percentage, and you tend to fight it. Help me rectify that
in my mind, why that would be two different ways.
Mr. Brown. Could you repeat the question?
Mr. Norcross. You have card check where you recognize the
rights of the employees to have a voice. In California, what I
am hearing is where there is a very low percentage of members
who work there, the tribe tends to fight this much more
vigorously. Why is that? Is it because it is the percentage of
tribal members that work at the casino that drives that
decision?
Mr. Brown. Yes. Again, the number of employees with the
Navajo Nation, basically our laws protect the workers under the
Navajo Nation Equal Employment Act. I don't know about other
tribes.
Mr. Norcross. I see my time is running out. I yield back.
Thank you.
Chairman Walberg. I thank the gentleman. I now recognize
the immediate past chairman of this subcommittee, the gentleman
from Tennessee, Dr. Roe.
Mr. Roe. Thank you, Mr. Chairman. Since 1832, the Supreme
Court has held that Native American tribes retain inherent
powers of self-government. I just looked up ``sovereignty.'' It
says ``The authority of a State to govern itself.''
What these tribes are looking for is parity, the same as
any other state and local government. That is all they are
asking for. It is not complicated. It was mentioned about how
many billion dollars in the industry, thank goodness that the
Indian tribes have lived in poverty for so many years and now
have some resources to help the people they represent.
I know exactly what that is like. They represent their
people and their tribe and their government just like I
represent the people in my government.
So, thank you for what you do, and I think this is an
assault on liberty when you try to have a big federal
government tell a tribal government what to do.
I am going to start by just asking a couple of questions.
First, Chairman Cladoosby, many federal labor laws specifically
exclude Indian tribes from the definition of ``employer.'' Is
there any mention of Indian tribes in NLRA, and if the act is
solid, what theory has the NLRA applied to jurisdiction over
tribes?
Mr. Cladoosby. That is a real good question, Mr. Roe,
because for 70 years, we were exempted, and then in 2004--once
again, thank you for recognizing the impact that Tribes are now
having on the local economy. In some places, we're the largest
employers in our counties.
We just want to be recognized as a government like the
other governments. The gentleman asked about OSHA, the
difference is a federal third party, a union, being forced on
the tribes is really a big issue that I wanted to address with
that gentleman also. Thank you for that question.
Mr. Roe. Delegate Brown, could you further elaborate on the
size and scope of the Navajo government? Do you have courts,
legislative branch, other government functions that a private
employer would not have? What role do tribal enterprises play
in maintaining these operations?
Mr. Brown. Thank you for your question, sir. Within Navajo
Nation, we have over 300,000 members, this is on and off the
Navajo Nation. Again, we are a mirror to the federal
government. We do have a legislative, judicial, and executive
branch. Within judicial, we do have a court system. We have our
Labor Relations Office, and we also have the Navajo Nation
labor relations laws that protect our people.
Mr. Roe. We should respect that. How do Navajo employee
wages and benefits compare to local averages where you live and
govern?
Mr. Brown. Within Navajo Nation, we still have a high
unemployment rate. However, some of the wages are comparable,
and we do have a good medical package, and I think that's where
we try to make up for some of the low wages in some areas, but
they're pretty comparable otherwise.
Mr. Roe. As a leader of one of the largest tribal
governments, what does sovereignty mean to you and your people?
Mr. Brown. Sovereignty is to govern ourselves as we have
our ways of life, and we understand that today, the way any
government would function is with money. Slowly, we would like
to be completely sovereign, to have our say, to have our
stance, and we would like to be respected the way the United
States federal government is.
Mr. Roe. I was a mayor before I came here, mayor of my
local city, 65,000 people. I think you just want to be treated
the same way and operate the same way I was when I was mayor of
Johnson City, Tennessee. I think that is what I am hearing and
what I read in this bill, in Mr. Rokita's bill, which I
wholeheartedly support.
One last question to Mr. Cladoosby, if you can. You spoke
about the possibility of unions interfering in tribal politics
and elections. A single union could end up representing a large
portion of tribal voters. How would unions under NLRA
jurisdiction have an even greater ability to interfere with
Tribal elections than unions under Tribal labor laws?
Mr. Cladoosby. Once again, I want to make it very clear
that we're not anti-union. The unions, they fulfill a very,
very important role in the United States, and they have since
its creation.
We just want to make sure that as sovereigns, we're able to
treat our employees the best that we can, enact the laws that
we need to protect our employees, and I believe every Tribal
government does that.
We have witnessed outside interference in our homelands
since the non-Indian came into this beautiful country, the
greatest country in the world. We've been dealing with that
ever since.
So, we view this as just one more attempt by the federal
government to allow a third party to come into a sovereign,
something that you don't allow for your city, your former city,
any of your cities, where you guys come from. You have a system
set up, a government set up, and we just want to be treated
like that government.
Mr. Roe. Thank you, Mr. Chairman. Thank you for being here,
and I yield back.
Chairman Walberg. I thank the gentleman. I recognize the
gentlelady from Florida, Ms. Wilson.
Ms. Wilson of Florida. Thank you, Chairman Walberg and
Ranking Member Sablan, and our Ranking Member Scott.
I want to thank our witnesses for sharing your perspectives
with us. It is important for us to hear from you so that we
will know how to best move forward in our endeavors.
I would like to thank all of my colleagues here today, and
I strongly support the sovereignty of the Native American
Nations. I believe we need to promote their rights to self-
governance, as well as their independence.
However, I also strongly believe in the rights of workers
to organize, and to be able to work in a safe environment. This
includes Native American workers and non-Native Americans that
work in tribal enterprises. Congress should not favor one at
the expense of the other.
That said, Mr. Chairman, I cannot support this bill in its
present form before us today, since it would severely harm
workers' rights by stripping hundreds of thousands of workers
employed at Indian owned tribal enterprises of their voice in
the workplace, and deny protections for them under the National
Labor Relations Act.
I want to direct my question to Mr. Jack Gribbon, political
director for UNITEHERE! Why do you oppose H.R. 986, and explain
to us why it is important not to eliminate NLRA as a backstop
even where you have a Tribal Labor Relations Ordinance?
Mr. Gribbon. Congresswoman, thank you very much for the
question. It's important because the NRLA is the foundation and
the only foundation on federal lands for the ability for a
worker to have the right of free speech and free association.
It has also created the incentive for workers and tribes to
come together and work out additional avenues of reaching an
agreement that prevent the ability for striking, that prevents
some of the concerns that some of the tribes here have
described today.
The bottom line is in the San Manuel decision, the NLRB
noted a really big distinction here within that decision,
between commercial tribal enterprises, like a casino, like a
mine, like a construction company, and enterprises that employ
a substantial number of non-tribal members, and cater to non-
Indian clientele versus traditional tribal services or
governmental functions.
Most importantly, the National Labor Relations Board is
clear that it has no jurisdiction over internal tribal
governmental matters, but only over the protection of free
speech and the protected, concerted activity of employees in
commercial tribal enterprises.
Ms. Wilson of Florida. A witness on the panel testified
that the application of the National Labor Relations Act would
undermine federal and tribal policies requiring Indian
preference in employment. Do unions have the right to restrict
whom employers hire under NLRA, or was that outlawed under the
Taft-Hartley Act?
Mr. Gribbon. It is outlawed. But let me just tell you
practically speaking, my union, we don't have an impact on the
employer pre-hiring. We don't actually have protections for
workers for the first 90 days that they are employed in covered
employment under a collective bargaining agreement at a casino.
After that 90th day, we have the ability to protect and grieve,
whatever, should there be a reason to do that.
Having said all that, there are tribes in California,
particularly Graton Rancheria, where they are absolutely
crystal clear that they have a Native American preference for
hiring, and we salute that, we support that. They have been
actually very successful at doing that.
Chairman Walberg. I thank the gentlelady. I now recognize
the sponsor of this legislation, the gentleman from Indiana,
Mr. Rokita.
Mr. Rokita. I thank the chair for holding this hearing. I
thank the past chair for holding the hearing last Congress. I
thank the chairman of the full committee for doing this.
This is a stand-alone bill, it is not supposed to be a
controversial issue. It got out of the House in a very strong
way with bipartisan support last Congress, and I expect even
more bipartisan support this time.
The fact of the matter remains, Chairman, it is a very busy
time. We are talking in terms of reconciliation and mega bills,
this and that, and the other thing, a tax reform, health care.
This bill is none of that. This bill is simple on its face,
and while the word talked about most here is ``sovereignty,''
and I think that is a very important concept, I think an even
more important word that came up in this hearing is ``parity.''
Mr. Norcross asked the question of several of the
witnesses, well, why is this different than any other. Well, it
is different because under the NLRA, the National Labor
Relations Act, state and local governments are not covered,
nor, Mr. Gribbon, are there commercial enterprises covered.
So, this foundation that Mr. Gribbon speaks of that is so
badly needed for our Native American leaders is not found for
our leaders and our governments at the State and local levels.
That is the parity we are talking about.
Mr. Gribbon. Can I speak?
Mr. Rokita. No. OSHA does speak to state and local
governments, OSHA does cover that, and that is another
difference here. That is simply what we are talking about, do
we believe that our Native American leaders are any less
legitimate to operate their governments or in a less way than
our state and local leaders do? What is it about Native
American leaders that the Obama Administration and NLRB does
not trust?
Are these leaders sitting before us today, ladies and
gentlemen of this committee, less legitimate than any other
mayor, like Phil Roe was, or any other elected leader, and by
extension, why are Native American voters who elected these
leaders not trusted in parity as leaders of State and local
governments were elected?
I do not know, but that is what it boils down to. We need
this foundation, Mr. Gribbon describes, because these leaders
apparently, and their governments, cannot handle it, in that
mindset. That is wrong. That idea itself is the idea that is
illegitimate.
That is what this bill intends to correct. I think we are
going to get there, Mr. Chairman, this time. We had 24
Democrats vote for it off the House floor last Congress. I do
not know why all of them did not.
Our Native American partners, our brothers and sisters, are
either sovereign or they are not, and where do we stand? Fair
is fair and right is right.
Chairman Cladoosby, in your written testimony, you state
that you ``Are not aware of any tribe that does not have an
extensive process for employees to make complaints and to
appeal adverse employment decisions.''
What are some examples of how tribes are protecting their
employees? Is there anything that we in the Federal Government
can learn from the Tribes on this topic?
Mr. Cladoosby. Thank you, Mr. Rokita. Yes, definitely, and
once again, when I was growing up, Swinomish had five employees
in the late 1960s/early 1970s, five employees. Now, we have
over 900 employees that are paid very good wages, that have
great benefits. Some of my employees have been with us 30 plus
years because they love working for Indian tribes.
We have definitely set up internally from a tribal
governance perspective rules that govern our employees, and we
have a process set up where we have a full H.R. Department, we
have an attorney that is well versed in labor laws that came to
us.
We are in a position now where we have the infrastructure
that we've never had before, and we do take care of our
employees and make sure that their concerns are taken care of.
Just one other point on the NLRB, it has ruled that tribal
preference is unlawful in a case involving Chickasaw and
Choctaw. That is a concern that tribes have across the Nation
of allowing a third party coming in to our homelands. Thank
you.
Mr. Rokita. Thank you, Chairman. Mr. Chairman, my time has
expired.
Chairman Walberg. I thank the gentleman. I now recognize my
friend from Connecticut, Mr. Courtney.
Mr. Courtney. Thank you, Mr. Chairman. Thank you to all the
witnesses for being here. I have a little less gloomy
perspective than my friend, the sponsor of this bill, in terms
of the choice that we have before us.
As some of you know on the panel, I am proud to represent
Eastern Connecticut, which is home to two of the largest Native
American casinos, Mohegan Sun and Foxwoods Casino, which is
Mashantucket Pequot Nation.
Ten years ago, roughly, almost 10 years ago, the UAW and
the Mashantucket Pequot Tribal Nation entered into an agreement
regarding a labor organizing drive, which again started with
the NLRB, but ended up with the legal framework of the
Mashantucket Pequot Nation. For again almost 10 years, they
have had a very harmonious relationship for the bartenders and
the dealers that the UAW represents, again, within the
framework of tribal law.
Again, I do not want to misrepresent anything. I know the
Mashantucket's support this legislation, and I want to make
that clear on the record, but what I would just say is the
notion that this is a totally insolvable problem for the two
sides to work out, recognizing an overall right to collective
bargaining, which has been guaranteed since the 1930s and
recognized by the United Nations, and in the 1800s, Pope Leo
recognized collective bargaining as an essential element of
human dignity.
Again, we can find a way to make this work. As I said, that
in fact has been the case. Right now, the UAW and the
Mashantucket Pequot's are hard at work at the Connecticut State
legislature sort of trying to fend off a threat up in
Massachusetts in terms of a casino operation opening up there.
Actually, that collective bargaining relationship, I think,
has actually helped them in terms of having sort of more
political muscle in terms of dealing with that challenge to the
casino's future.
I want to thank all the witnesses for being here. Again,
sovereignty issues are in the fabric of our Nation's history,
and we have to be really careful and mindful of it.
Whether it is a police jurisdiction on casinos or OSHA
jurisdiction, these are issues that I think have to be dealt
with a scalpel and not a sledge hammer.
As I said, I am an optimist in terms of the fact that
reasonable people can come to an agreement, recognizing again
sovereignty and sovereign control.
So, I really do not have a question. I would like, however,
Mr. Chairman, to enter into the record a letter from the folks,
the workforce, at Foxwoods, in terms of again just confirming
the fact this has worked out, that this issue has been worked
out in a harmonious fashion, recognizing the rights of both
sides.
Again, with that, I would yield back.
Chairman Walberg. Hearing no objection, it will be entered.
I thank the gentleman. I now recognize the gentleman from
Minnesota, Mr. Lewis.
Mr. Lewis. Thank you, Mr. Chairman. In 1935, the National
Labor Relations Act was enacted to ensure fair labor practices,
and the Board, of course, associated with it. It excluded
deliberately federal, state, and local governments from its
reach. For 70 years, that had been the legal precedent, and it
applied to Tribal governments as well, until the San Manuel
decision in 2004. So, we are going on new legal ground here in
a very dramatic way.
Now, as a representative from the great state of Minnesota,
in my district, I am proud to have two striving tribes, and
doing very well, so I am proud to be a co-sponsor of this
legislation with Representative Rokita and applaud his hard
work.
The problem here is the NLRA is applied to the tribes as a
covered entity. This would just be the camel's nose. What other
government rules from the federal government that are currently
excluded from local governments, state governments, and
commercial activities, will now be applied to the tribes as
well?
I have to say I fear when that happens that many of the
rules in non-tribal enterprises that are hamstringing those
will hamstring the tribes as well. These are great enterprise
zones, an example of great prosperity for a number of people.
If we start applying these rules, especially since the
tribal governments do not get sales, income, or property tax
credits, they rely on their commercial activities at this
point, and I fear that it will do them great damage if we start
letting a very capricious NLRB start to regulate them.
In fact, in the San Manuel case, the decision was decided
or applied on a case by case basis. So, we have a situation now
where the Board could act and apply rules in a very, very
capricious way, and some might even say a political way, which
would add more uncertainty to tribal governments.
It has been noted by some of the witnesses or one of the
witnesses that workers at casinos--many workers at casinos are
not tribal. So, therefore, it is a commercial activity, and the
NLRB ought to be have jurisdiction there.
One of the reasons that so many workers, at least in my
district, at our very successful tribes, are not all from the
tribes itself is because these are good jobs. So, non-tribal
folks in the Second District want to work there.
That, I think, is a testament as to why Representative
Rokita's bill needs to be passed, to make certain they can
continue to strive and to continue to offer good jobs to tribal
members and non-tribal members alike.
So, I really have no questions for the witnesses other than
to say in the interest of legal precedent, as well as the
concept of subsidiarity and local government, these enterprise
zones ought to be allowed to flourish, and I would add the free
speech of tribal governments ought to be allowed to flourish as
well.
So, I am proud to support the Tribal Labor Sovereignty Act
of 2017, and urge the committee--
Mr. Rokita. Will the gentleman yield?
Mr. Lewis. I do.
Mr. Rokita. I thank the gentleman for yielding. Will the
gentleman consider entering into the record this letter from
the United States Chamber of Commerce, which asks that this
bill be favorably reported not only out of the full committee
but out of the House of Representatives and out of the Senate?
Mr. Lewis. Mr. Chairman, I would request this letter from
the United States Chamber of Commerce be entered in the record
that advocates the markup of the bill.
Chairman Walberg. Hearing no objection, it will be entered.
Mr. Lewis. Thank you.
Chairman Walberg. I thank the gentleman. Now, I have the
privilege to recognize the ranking member of the full Education
and the Workforce Committee, the gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman, and thank you to you
and the ranking member for holding the hearing. I am not sure
which representative will want to answer this, but it is my
understanding that currently and under the bill, government
operations are not covered by the NLRB. Is that true?
Mr. Gribbon. What I can say to you is the NLRB has said
that under the San Manuel decision, it provides that the NLRA
applies only wherein its application would not interfere with
tribal rights of self-government in purely intramural matters,
abrogate rights guaranteed by treaty, or be contrary to
congressional intent.
Mr. Scott. Let me ask some of the other witnesses. Does
anybody doubt government operations, city councils, government
employees, would not be covered by the NLRB, both under the
bill and under present law?
Mr. Cladoosby. I guess you would need to look at the
definition of ``government operations.''
Mr. Scott. Tribal employees employed by the tribal
organization doing governmental functions, road building--
employees of the tribal government doing governmental functions
would not be covered by the NLRB either under present law or
under the bill?
Mr. Cladoosby. Just like federal, state, and local
government employees?
Mr. Scott. Right.
Mr. Cladoosby. That are not covered under the NLRB, we want
to be treated the same as those federal, those state, and those
local governments--
Mr. Scott. I am just trying to determine and focus on what
the impact of the bill would be.
Mr. Cladoosby. I think the impact of the bill would look at
tribal sovereigns like they did for 70 years under the NLRB,
and treat us like federal, state, and local governments. That
is all we are asking today.
Mr. Scott. Under current law and under the bill, you are
not covered right now for governmental functions? Is that
right?
Mr. Cladoosby. Right now, the NLRB has--
Mr. Scott. Does not apply to government operations?
Mr. Cladoosby. Once again, your definition of ``government
operations'' might be different than my definition of
``government operations.''
Mr. Scott. We have not gotten to that. On the government
operations, you are not covered. The bill would extend that
exemption to Indian owned and operated enterprises. Is that
right?
Mr. Cladoosby. Just like we have mega lotteries run by
states across the nation. We're not the only government that
runs gaming.
Mr. Scott. I am just trying to understand the bill.
Mr. Cladoosby. So, I would hope that you would look at our
government operations the same way you would look at a state.
Mr. Scott. I am just trying to understand what the bill
does.
Mr. Cladoosby. Right.
Mr. Scott. The bill extends the exemption to Indian owned
and operated enterprises.
Mr. Cladoosby. The same way it does for state owned and
operated enterprises.
Mr. Scott. Okay. Does the bill extend to privately owned
enterprises?
Mr. Cladoosby. No. So, once again, we are not creating
union free zones in Indian Country under this bill. We need to
make that very clear.
Mr. Scott. Would a tribal organization be able to prohibit
unions from a reservation?
Mr. Cladoosby. Once again, a sovereign should be allowed to
govern the way it wants to, no other outside--
Mr. Scott. I am talking about for a private enterprise.
Mr. Cladoosby. If a tribe wants to unionize, that is up to
the Tribe.
Mr. Scott. I am not talking about the tribe. I am talking
about a private non-Indian owned, non-government owned
enterprise, a privately owned enterprise, should they be able
to prohibit on the reservation unions--
Mr. Cladoosby. You mean like a proprietary business
operating on a reservation?
Mr. Scott. Right.
Mr. Cladoosby. I would hope that this private business
operating on a reservation would work with the sovereigns. I
think they would want to--
Mr. Scott. This bill does not do that, this bill just
affects Indian owned and operated enterprises. My question was
whether or not under your standard, the tribe could prohibit
unions from operating in a privately owned enterprise.
Mr. Cladoosby. That's a good question.
Mr. Scott. Does federal criminal law apply to Indian
reservations?
Mr. Cladoosby. Once again, I hope I'm answering your
question right, I just want to make it very clear that it does
not create union free zones in Indian Country. I don't know if
that's what you're looking for.
Mr. Scott. Right, that was the question. Does federal
criminal law apply on reservations?
Mr. Cladoosby. Excuse me?
Mr. Scott. Federal criminal law.
Mr. Cladoosby. Of course, it does.
Mr. Scott. OSHA?
Mr. Cladoosby. Of course, it does.
Mr. Scott. Minimum wage?
Mr. Cladoosby. Of course, it does, just like federal law
applies to other governments also, I believe. Whether it is a
state or local or county government, they, too, have federal
laws that they have to abide by.
Mr. Scott. I am just asking what applies and what does not.
I am not trying to argue the point.
Mr. Cladoosby. I hope that answers the question, all
governments have federal laws they have to abide by.
Mr. Scott. Title VII, should that apply to everybody? It
applies to state and local governments.
Mr. Cladoosby. Yes
Chairman Walberg. The gentleman's time has expired.
Mr. Cladoosby. Thank you very much. Those are really,
really good questions, Mr. Scott. If you need follow up, we're
more than happy to give follow up on those questions, but they
were really great questions. Thank you.
Chairman Walberg. I thank the gentleman. I now turn to the
gentleman from Michigan, my good friend, Mr. Mitchell.
Mr. Mitchell. Thank you, Mr. Chairman. Chairman Cladoosby,
can you share with me, under the San Manuel decision, the Board
indicated it would not assert jurisdiction if the application
of law would abrogate treaty rights, does the NLRB have any
special knowledge of Indian treaties, and where does it gather
this knowledge from?
Mr. Cladoosby. Well, unfortunately, treaties with Indian
tribes in the United States are not truly understood by the
majority of the citizens. I would hope that any one of our
trustees working in the Federal Government would want to get
educated on the understanding of treaties and treaty rights. I
think that should be definitely a 101 for all employees.
You know, I cannot speak for the NLRB on what their--
Mr. Mitchell. Does that decision not create two separate
classes, tribes with treaties, tribes without? They are still
sovereign nations. Does it not in some manner subdivide them?
Mr. Cladoosby. Yes, we feel that way.
Mr. Mitchell. What is the impact on your tribes?
Mr. Cladoosby. Once again, it boils down to us having the
ability to govern ourselves as sovereigns. We would just want
to be treated like all the other governments in the U.S.
Mr. Mitchell. Mr. Gribbon, maybe you could help me
understand how it is that the NLRB will magically develop
expertise in terms of the treaty rights and treaty law, since
it has not been their primary expertise?
Mr. Gribbon. Well, thank you very much for the question. In
fact, they already have been doing that. The NLRB also adopted
a criteria where it considers whether there are policy reasons
to not assert jurisdiction.
Mr. Mitchell. Let me stop you--
Mr. Gribbon. The--
Mr. Mitchell. Excuse me, sir. I get to ask the questions,
you get to answer them. Thank you very much.
Mr. Gribbon. Okay, but this--
Mr. Mitchell. Excuse me, sir. I am going to ask the
question, you are going to answer the question. You are not
going to answer what you want. I said how is it that the NLRB
has developed the expertise internally, not what policies they
developed, I want to know where their expertise comes from,
their experience, what qualified people they have on that. That
is my question, sir, not what policy they may develop. Please
answer the question.
Mr. Gribbon. Well, what I can tell you is that consistent
with the three prong test under San Manuel, the Board declined
jurisdiction over an Oklahoma casino run by the Chickasaw Tribe
that was party to an 1830 treaty, which exempts the tribe from
nearly all Federal laws, and that proves that they're doing
their job.
Mr. Mitchell. That simply indicates at this point in time
they have chosen not to do so, not that they had the expertise
internally, which was the question, sir.
Let me try another one here. Did the NLRB engage with the
public prior to deciding the San Manuel decision? Did they
request briefs from tribes? What expertise did they gather to
make the decision that it could make that distinction?
Mr. Gribbon. I don't work for the NLRB, so I don't know
what kind of input they got. I can imagine that it was
substantial and huge, from every direction, since that's how
they work. That's why it takes them usually so long to make a
decision. They take information from all interested parties.
Mr. Mitchell. So, your opposition to this bill is solely
based on your assessment that they have done a great job so far
and not any argument they have expertise to make this
determination?
Mr. Gribbon. Absolutely not. That is not my argument. My
argument is and my argument would be that workers deserve
better rights than they receive in this country, whether they
be on Indian lands or not. That workers have been harassed and
abused, especially by your party, really badly, over a whole
number of years, and there could be very, very good
improvements made if we were really worried about raising wages
and personal income and respect and dignity in this country.
I believe we could do much better. I'm saying the NLRA is
an absolute bare minimum--
Mr. Mitchell. You did not answer my question.
Mr. Gribbon. Bare minimum. I'm not happy with it, it's a
bare minimum.
Mr. Mitchell. I am happy for you, but I get to ask the
questions. You get to testify, I get to ask the questions. If
you want to stop by my office later, I am happy to have a
debate with you.
Mr. Gribbon. Okay.
Mr. Mitchell. That would be great. First, I grew up in a
union household. Like my friend from Minnesota, we have a lot
of employees, and people go to work in the casinos that in fact
have options to go to jobs that are represented, and they
choose to go there because they are good jobs, and they are
better jobs than union represented jobs in many places.
What you see as the panacea, protection, it does not offer
much, and does in my opinion violate the sovereignty of the
tribal nations.
I am asking Mr. Rokita to please add me as a co-sponsor of
the bill, and if you want to continue the debate, please stop
by my office and we can talk about labor relations.
Mr. Gribbon. All right. I think--
Mr. Mitchell. My time has expired. I yield back, sir.
Mr. Gribbon. Totally missed the point.
Chairman Walberg. I thank the gentleman. I now recognize
the gentleman from Pennsylvania, Mr. Smucker.
Mr. Smucker. Thank you, Mr. Chairman. Chairman Cladoosby,
is it not true that many tribes have enacted their own laws or
ordinances that govern labor relations at tribal commercial
enterprises?
Mr. Cladoosby. Yes, sir.
Mr. Smucker. Could you please expand a little on what they
are?
Mr. Cladoosby. Sure. Once again, tribes have never had the
opportunity to have a Marshall Plan. Do I wish it was some
other form of operations that enabled us to create this great
infrastructure? Yes. It is what it is.
So, right now, tribes around the nation have shown that
they have the ability to be the largest employers in their
areas, and they take care of their employees very well. Many of
them have implemented employer rights ordinances to make sure
that their employees are taken care of satisfactorily.
Like the gentleman said, you know, we do pay pretty fair
wages in some of our operations and full benefits.
Mr. Smucker. Do you have concerns if the NLRB determines it
has jurisdiction what will become of those tribal labor laws?
Mr. Cladoosby. Once again, I would hope that the NLRB would
see this as an intrusion into a sovereign, and that they would
recognize that we have the ability internally to take care of
our own, just like any other government, whether it be state,
county, or local.
Mr. Smucker. Chairman Welch, I will ask you to sort of
address the same question. You spoke about the Viejas Tribal
Labor Relations Ordinance that has worked well over the years.
Why do you think that TLROs are more important for a sovereign
entry than the NLRA?
Mr. Welsh. Our TLRO was brought forward to us with working
hand in hand with the California state, the government. The
governor at that time asked that we put one together to enter
into for compact negotiations.
I think the governor at that time did not believe the NLRA
or NLRB had jurisdiction over the reservation, which has been
proven, because 1935 to 2004, when Congress enacted the NLRA,
they never envisioned Tribes being successful as they are, so
they were never put into it.
So, how can NLRB finish the process of what Congress had
instituted when Congress hadn't finished it? That's one of our
big objectives with NLRA and NLRB.
Mr. Smucker. Thank you. Mr. Chairman, I yield back.
Chairman Walberg. I thank the gentleman. I recognize the
gentleman from Georgia, Mr. Allen.
Mr. Allen. Thank you, Mr. Chairman, and thank you all for
being with us today. Chairman Welch, the NLRB, which was
enacted in 1930, was intended to govern private sector labor
management relations. Can you explain why the application of
the NLRB is in conflict with the role of the state, local, and
tribal governments?
Mr. Welsh. Can you repeat that, the last part?
Mr. Allen. Can you explain why the application of the NLRB
is in conflict with the sovereignty of the tribal governments?
Mr. Welsh. Because they're trying to tell us what to do,
and we have sovereign rights enacted to us by Congress and the
Constitution.
Mr. Allen. All right, good. You answered that.
Mr. Cladoosby, many federal laws specifically exclude
Indian tribes from the definition of ``employer.'' Is there any
mention of ``Indian Tribes'' in the NLRA? If the act is silent,
what theory has the NLRB applied to exert jurisdiction over
Indian tribes?
Mr. Cladoosby. That's a really good question, sir, and
their ability to assert jurisdictions over a government is one
that we are trying to figure out also. We feel that we protect
the rights of our employees very, very well.
I guess once again, you know, when we look at it from a
state, local, and county perspective, what right would they
have to go into those governments like they want to come into
ours.
Mr. Allen. Again, the act was enacted in the 1930s, how
have tribal governments and tribal enterprises changed since
then, and why does this further support the idea that tribal
enterprises on tribal lands should not be subject to the NRLA?
Mr. Cladoosby. I think you've heard about the income. I'm
not sure if this is about money or about looking out for the
best interests of the employees. I know we as tribes have come
a long way. Like I said earlier, Swinomish only had five
employees when I was growing up, and to have over 900 now that
we take care of very well is a great accomplishment.
Like one gentleman said, they can't vote, a lot of them,
because they're not tribal members, but if you look at Las
Vegas and Reno, where you have a lot of gaming, a lot of those
employees come from outside of Las Vegas and Reno, and they
can't vote there either.
We just want to be treated the same as other governments.
Mr. Allen. It is not that your wages are below what is
normally paid, or you are taking advantage of members of your
tribe in your operation here? You just want to do--given the
rights you have been given, you just want to be able to manage
this the way it was originally established?
Mr. Cladoosby. Yes, sir.
Mr. Allen. Exactly. Here we have the government saying that
we want to intervene. We have that problem in a lot of areas.
Of course, that is why so many people want to get into this
country, because of the way we treat our workers with dignity
and respect.
In fact, I had the opportunity to work in the small
business arena for 35 years, and I was able to--the greatest
blessing I had received, and I realized this later on in my
career, I wish I had realized it earlier, but boy, what a
blessing it was, and I am sure you are experiencing this, from
what I have heard in your testimony, is to give people the
opportunity to have a good job, to give them the dignity and
respect they deserve, and to allow them to provide for their
families, and also provide for their Nation. That is a great
privilege.
I thank you for coming out and providing your testimony
today. I look forward to working with you on this.
Mr. Cladoosby. Thank you, Mr. Allen. I think at the end of
the day, any operation, any business, all they want is good
employee relationships, employees to feel comfortable coming to
work, and they want their employees to feel like they have the
greatest jobs in the world.
Tribes are in a position now to do some things that we've
never ever been able to do, and we're just very blessed. The
Creator has blessed us and allowed us to be able to make a lot
of families happy that otherwise wouldn't have that
opportunity.
Mr. Allen. I am going to do my best to keep the federal
government out of your way.
Mr. Cladoosby. Thank you, sir.
Mr. Allen. Yes, sir. Thank you. I yield back.
Chairman Walberg. I thank the gentleman. Now, it is my
privilege to recognize the ranking member, Mr. Sablan, for your
closing remarks.
Mr. Sablan. Thank you very much, Mr. Chairman. I want to
thank all the witnesses today for their testimony. I am not
trying to stick my nose into your business.
As I noted at the outset, the San Manuel decision struck a
balance between the protection of tribal sovereignty rights and
the protection of workers' rights. Although Tribal Labor
Relations Ordinances have been adopted by some tribes, these
ordinances vary greatly in the levels of workforce protection.
I have Section 3107 of the 2010 Blackfeet Tribal Employment
Rights Ordinance and Safety Enforcement Act of 2010, which I
ask to insert in the record. It reads ``Unions are prohibited
in the Blackfeet Indian reservation.''
So, there are tribes that discourage unions in their
organizations.
Chairman Walberg. Without objection, it will be entered.
Mr. Sablan. There is no uniform standard for tribal
ordinances, which means there could be 567 different labor
standards, depending on the tribe.
What provides protection is the National Labor Relations
Act. However, if H.R. 986 is enacted, workers would lose the
protection of the federal minimum standard. Similar concerns
were raised by the International Labor Organization in a letter
to Congress regarding the Tribal Labor Sovereignty Act.
ILO wrote in part, in those cases where there are no Tribal
Labor Relations Ordinances, undue restrictions on collective
bargaining, excessive limitation on freedom of association
rights, or lack of protection from unfair labor practices,
workers on tribal territories would be left without any remedy
for violation of their fundamental freedom of association
rights, short of the Constitution.
Mr. Chairman, I would ask unanimous consent also to include
this three-page letter from the International Labor
Organization in the record of this hearing.
Chairman Walberg. Without objection, it will be entered.
Mr. Sablan. Thank you, sir. I would also ask for unanimous
consent to include the letter in opposition from the AFL-CIO,
International Union of Operating Engineers, United Auto
Workers, Local 2121, and the United Steel Workers, into the
record.
Chairman Walberg. Without objection, they will be entered.
Mr. Sablan. As we have learned today, Indian Tribes are
subject to a number of federal employment laws, including the
Fair Labor Standards Act, OSHA, ERISA, the Family and Medical
Leave Act, but Mr. Cladoosby, in your response to the Ranking
Member's question if Title VII of the Civil Rights Act applies
to the tribes, you answered ``yes''. The answer is ``no''.
Title VII of the Civil Rights Act does not apply to Indian
tribes, but it does to any local government.
Mr. Cladoosby. Thank you for that correction, sir.
Mr. Sablan. You are welcome, sir.
A review of the committee's activities may help explain the
focus since the Majority took control in 2011: there have been
26 hearings or markups attacking the National Labor Relations
Board's rules on these issues, compared with 17 on-the-job
training and technical education, 11 on OSHA and mine safety,
15 on pensions and retirement issues, and 11 on wages and hour
issues.
What we know is that only 6.4 percent of the private sector
workforce today is covered by a union agreement. Union
agreements have provided many low wage service workers employed
in tribal casinos or other tribal businesses with improved
wages and benefits, which has provided them with a foothold to
the middle class. By negotiating employer provided health care,
the cost to state and local governments for health care costs
has gone down.
Legislation in this area needs to balance the sovereign
rights of Native American tribes with the rights of workers to
organize and bargain collectively.
Mr. Chairman, we should not be enacting legislation that
weakens workers' ability to bargain for a fair share of the
wealth, whether it is in a commercial business or a tribal
enterprise.
If I may, one of the main reasons if not the main reason
that I ran for Congress was to find a way to help improve the
education of the poor people that I represent in the Northern
Mariana Islands. In the seven years working on that, I am
finally happy, with the help of Mr. Kline and Mr. Scott, and I
think Mr. Rokita was also ranking at that time, that we were
able to increase the formula for Title I money.
We had that hearing, and I saw the appalling state of
Indian schools, so I was able also working with Mr. Kline to
increase the funding for Bureau of Indian Education. You guys
need to speak up for your people, their education, and the
appalling state of the education ran by the Department of
Interior is not something that I can say I am proud of, to be
an American.
After saying that, Mr. Chairman, I yield back the balance
of my time.
Chairman Walberg. I thank the gentleman, and thank you
especially as you come from a perspective of actually being a
tribal member, and appreciate your passion and your concern.
I want to thank Chairman Cladoosby, Delegate Brown, Mr.
Gribbon, and also Chairman Welch, for taking the time and
effort to travel, et cetera, to be here. I appreciate that
fact.
I want to thank my colleague, Mr. Rokita, for your
diligence in bringing this back up. As chairman of the K-12
Subcommittee, this fits, as we talk to young people, talk about
the wealth of our Nation and our history, that includes also
some challenging times as we worked out treaties, as we dealt
with the Native American population.
There were some--I guess the weakest words to use would be
``frustrating times,'' there were some tragic times as well.
Treaties have been developed, sovereignty has been affirmed,
not simply by statement but by law and agreement.
That term ``sovereignty'' is extremely important for us to
understand. We revel in that here in the United States of
America. We understand that we are a sovereign nation, and when
we recognize other nations in the world as being sovereign,
including the nations we are looking at right here in front of
us this morning, that is something that we ought to make sure
our young people understand, K-12 on up, and it is something
more importantly that we ought to keep the faith with in our
treaties, in our agreements, and in our laws.
That is all this is here today. We are not talking about
holding back unions and union organization. We are not talking
about that. I think all of us here would respond that we
respect and we want to continue the freedom for our workers to
organize in unions. Do it fairly, on both sides, of course, but
that ought to be a right.
We are talking of a sovereign nation. It is their
determination that comes first, and we ought to honor that.
Today, we are answering a question, can we do it better than
the tribes? Maybe, but that is not our authority. Maybe not as
well. That is your authority.
I think that is what we are affirming today. Definitely,
Mr. Chairman, we are affirming parity. We wrestle with that in
our States, do we not? The Tenth Amendment, liberties, that we
say all the time are being stepped upon by the Federal
Government. Today, we are seeing that it is the same type of
situation for the tribes.
I appreciate the questions, the testimonies given today,
and I appreciate the thought processes to move this forward and
to put it in front of us, and I think because of that we will
also put the point in history of reminding ourselves that those
treaties, those agreements, have purpose, have strength, have
power, and it is about time we recognized that, and we push
back on entities of our U.S. federal government when they are
attempting to step over the bounds, regardless of what certain
courts have said, we identify with our responsibility to uphold
the Constitution just as much as any court.
Seeing there is no further business before the
subcommittee, we stand adjourned.
[Additional submission by Mr. Cladoosby follows:)
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[Whereupon, at 11:51 a.m., the subcommittee was adjourned.]
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