[House Report 114-260]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-260
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TRIBAL LABOR SOVEREIGNTY ACT OF 2015
_______
September 10, 2015.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Kline, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 511]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 511) to clarify the rights of Indians
and Indian tribes on Indian lands under the National Labor
Relations Act, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tribal Labor Sovereignty Act of
2015''.
SEC. 2. DEFINITION OF EMPLOYER.
Section 2 of the National Labor Relations Act (29 U.S.C. 152) is
amended--
(1) in paragraph (2), by inserting ``or any Indian tribe, or
any enterprise or institution owned and operated by an Indian
tribe and located on its Indian lands,'' after ``subdivision
thereof,''; and
(2) by adding at the end the following:
``(15) The term `Indian tribe' means any Indian tribe, band, nation,
pueblo, or other organized group or community which is recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.
``(16) The term `Indian' means any individual who is a member of an
Indian tribe.
``(17) The term `Indian lands' means--
``(A) all lands within the limits of any Indian reservation;
``(B) any lands title to which is either held in trust by the
United States for the benefit of any Indian tribe or individual
or held by any Indian tribe or individual subject to
restriction by the United States against alienation; and
``(C) any lands in the State of Oklahoma that are within the
boundaries of a former reservation (as defined by the Secretary
of the Interior) of a federally recognized Indian tribe.''.
Purpose
H.R. 511, the Tribal Labor Sovereignty Act of 2015,
protects tribal sovereignty and the right to tribal self-
governance. The bill codifies the standard of the National
Labor Relations Board (NLRB or Board) prior to 2004 by amending
the National Labor Relations Act (NLRA) to provide that any
enterprise or institution owned and operated by an Indian tribe
and located on its land is not considered an employer,
excluding such from coverage of the NLRA.
Committee Action
112TH CONGRESS
Subcommittee hearing examining proposals to strengthen the National
Labor Relations Act
On July 25, 2012, the Subcommittee on Health, Employment,
Labor, and Pensions held a hearing entitled ``Examining
Proposals to Strengthen the National Labor Relations Act,''
reviewing decisions by the NLRB affecting tribal sovereignty,
secret ballot elections, and employee compensation. The hearing
also examined three legislative proposals: H.R. 972, the Secret
Ballot Protection Act; H.R. 2335, the Tribal Labor Sovereignty
Act; and H.R. 4385, the RAISE Act. The witness testifying on
tribal sovereignty stated the NLRB finding that Indian tribal
governments are not exempt from NLRA requirements was unfounded
and violated treaty rights.\1\ Witnesses before the
subcommittee were the Honorable Robert Odawi Porter, President,
Seneca Nation of Indians, Salamanca, New York; Mr. William L.
Messenger, Staff Attorney, National Right to Work Legal Defense
Foundation, Springfield, Virginia; Ms. Devki K. Virk, Member,
Bredhoff and Kaiser, P.L.L.C., Washington, D.C.; and Dr. Tim
Kane, Chief Economist, Hudson Institute, Washington, D.C.
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\1\Examining Proposals to Strengthen the National Labor Relations
Act: Hearing Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and the Workforce, 112th Cong. 9
(written testimony of the Hon. Robert Odawi Porter).
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114TH CONGRESS
H.R. 511, Tribal Labor Sovereignty Act of 2015, introduced
On January 22, 2015, Rep. Todd Rokita (R-IN) introduced the
Tribal Labor Sovereignty Act of 2015 with 14 cosponsors.\2\
Recognizing the threat to tribal sovereignty posed by the
NLRB's decision in San Manuel Indian Bingo and Casino,\3\ the
legislation provides any enterprise or institution owned and
operated by an Indian tribe and located on its land is not
considered an employer and therefore is not covered by the
NLRA.
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\2\H.R. 511, 114th Cong. (2015).
\3\341 NLRB No. 138 (2004).
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Subcommittee legislative hearing on H.R. 511
On June 16, 2015, the Subcommittee on Health, Employment,
Labor, and Pensions held a legislative hearing on H.R. 511, the
Tribal Labor Sovereignty Act of 2015.\4\ Witnesses included the
Honorable Rodney Butler, Chairman, Mashantucket Pequot Nation,
Mashantucket, Connecticut; Mr. Richard Guest, Senior Staff
Attorney, Native American Rights Fund, Washington, D.C.; the
Honorable Jefferson Keel, Lieutenant Governor, Chickasaw
Nation, Ada, Oklahoma; and Mr. Gary Navarro, Slot Machine
Attendant and Bargaining Committee Member for UNITE HERE Local
2850, Graton Casino and Resort, Rohnert Park, California.
Witnesses testified H.R. 511 is necessary to clarify the rights
of Indian tribes on Indian lands and provide parity for tribal
governments with federal, state, and local governments under
the NLRA.
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\4\Legislative Hearing on H.R. 511, Tribal Labor Sovereignty Act of
2015: Hearing Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and the Workforce, 114th Cong.
(2015).
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Committee passes H.R. 511, Tribal Labor Sovereignty Act of 2015
On July 22, 2015, the Committee on Education and the
Workforce considered H.R. 511, the Tribal Labor Sovereignty Act
of 2015.\5\ Rep. Todd Rokita (R-IN) offered an amendment in the
nature of a substitute, making a technical change to clarify
that an Indian tribe is not considered an employer covered by
the NLRA. The Committee favorably reported H.R. 511 to the
House of Representatives by voice vote.
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\5\H.R. 511, Tribal Labor Sovereignty Act of 2015: Markup Before
the H. Comm. on Educ. and the Workforce, 114th Cong. (2015).
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Summary
The Tribal Labor Sovereignty Act of 2015, H.R. 511, will
codify the NLRB standard regarding Board jurisdiction that
existed prior to the 2004 San Manuel Indian Bingo and Casino
decision, amending the NLRA to provide that any enterprise or
institution owned and operated by an Indian tribe and located
on its land is not considered an employer under the NLRA.
Committee Views
In 1935, Congress passed the National Labor Relations Act
(NLRA), guaranteeing the right of most private sector employees
to organize and select their own representative.\6\ In 1947,
Congress passed the most significant amendment of the NLRA, the
Taft-Hartley Act,\7\ abandoning ``the policy of affirmatively
encouraging the spread of collective bargaining . . . [and]
striking a new balance between protection of the right to self-
organization and various opposing claims.''\8\ The Taft-Hartley
Act clarified that employees have the right to refrain from
participating in union activity,\9\ created new union unfair
labor practices,\10\ codified employer free speech,\11\ and
made changes to the determination of bargaining units.\12\
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\6\The NLRA does not cover all employees and employers in the
United States. For example, public sector employers (state, local, and
federal employees), employers covered by the Railway Labor Act
(airlines and railroads), agricultural laborers, and supervisors are
not covered by the act. 29 U.S.C. Sec. 152(2)-(3).
\7\29 U.S.C. Sec. 141 et. seq.
\8\Archibald Cox, Some Aspects of the Labor Management Relations
Act of 1974, 61 Harv. L. Rev. 1, 4 (1947).
\9\29 U.S.C. Sec. 157.
\10\Id. Sec. 158.
\11\Id. Sec. 158(c).
\12\Id. Sec. 159(d).
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The NLRA established the NLRB, an independent federal
agency, to fulfill two principal functions: (1) to prevent and
remedy employer and union unlawful acts, called unfair labor
practices or ULPs, and (2) to determine by secret ballot
election whether employees wish to be represented by a union.
In determining whether employees wish to be represented by a
union, the NLRA is wholly neutral.\13\
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\13\NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973).
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Regulation of state labor relations
Congress understood the differences between the private and
public sectors when it excluded states from the NLRA. States
have promulgated varying labor laws based on the specific needs
of the states. For example, most states permit collective
bargaining and collective wage negotiations for public-sector
workers, while a minority of states prohibits public-sector
workers from such collective action.\14\ Conversely, most
states do not afford public-sector workers the right to
strike.\15\
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\14\Milla Sanes and John Schmitt, Regulation of Public Sector
Collective Bargaining in the States, Ctr. for Econ. and Policy
Research, 4-8 (Mar. 2014), http://www.cepr.net/documents/state-public-
cb-2014-03.pdf.
\15\Id. at 8-9.
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Tribal labor and employment law
Like the states, tribal nations have worked to protect the
rights of their employees, passing labor and employment laws
modeled after federal laws but tailored to the specific needs
of the tribes. In testimony before the Subcommittee on Health,
Employment, Labor, and Pensions, Rodney Butler, chairman of the
Mashantucket Pequot Nation, described a number of provisions of
the Mashantucket Pequot Labor Relations Law (MPLRL). The law
guarantees ``the Nation's employees the right to organize and
bargain collectively with their employers'' and ``allows labor
organizations to be designated as the exclusive collective
bargaining representatives of employees.''\16\
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\16\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Rodney Butler at 5) (internal quotation marks
omitted).
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Chairman Butler stated:
In sum, the MPLRL is modeled after other public
sector laws, is similar to the NLRA in many aspects,
and essentially furthers the policies and principles
that are fundamental to federal labor policy as
enforced by the Board. It provides employees of Tribal
Employers with protections that are in many instances
identical to or, in some respects, more effective than
those provided to employees of private employers under
the NLRA. At the same time, the Nation's labor law
protects important tribal and federal objectives in
preserving and enhancing the Nation's self-governance
through the use and recognition of its institutions and
the preservation of its sovereignty.\17\
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\17\Id.
Chairman Butler noted the Mashantucket Employment Rights
Office has conducted at least six elections under the MPLRL,
with four unions certified as the exclusive bargaining
representatives of units of employees.\18\ The Mashantucket
Pequot Nation subsequently entered into collective bargaining
agreements with those four unions.\19\
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\18\Id.
\19\Id.
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Similarly, the Navajo Nation's labor laws protect the right
to collectively bargain while additionally including a right-
to-work provision. Richard Guest, senior staff attorney of the
Native American Rights Fund, discussed unionization rights
under the Navajo Nation labor code in his testimony to the
subcommittee. Mr. Guest stated that in 1985 the Navajo Nation
council ``incorporate[d] the most basic privileges of the
[NLRA] to tribal employees, whom the council acknowledged were
otherwise exempt from the NLRA.''\20\ This included the right
to collectively bargain.\21\ In 1990, the council voted for the
Navajo Nation to become a ``right to work'' jurisdiction,
disallowing labor organizations from collecting union dues from
non-members.\22\ Unions are collectively bargaining with the
Navajo Nation and private employers on tribal land.
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\20\Id. (written testimony of Richard Guest at 6).
\21\Id. at 7.
\22\Id.
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Mr. Guest stated:
Collective bargaining is occurring on the Navajo
Nation, with private enterprise as well as government.
The United Mine Workers of America (``UMWA'')
represents employees at the Navajo Nation Head Start
Program, a tribal government program. The Nal-Nishii
Federation of Labor, AFL-CIO includes 12 labor
organizations that represent miners, power plant
workers, construction workers, school employees and
city employees working on or near the Navajo
Nation.\23\
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\23\Id. at 8.
Indian tribes have also addressed labor rights through the
California tribal labor relations ordinances. In his testimony,
Mr. Guest also described how in 1999 Indian tribes negotiated
tribal-state gaming compacts in California.\24\ A tribe would
only qualify for the compact if it ``adopt[ed] a process for
addressing union organizing and collective bargaining rights of
tribal gaming employees.''\25\ The negotiations resulted in the
drafting of a Model Tribal Labor Relations Ordinance
(Ordinance), which tribes with 250 or more casino-related
employees were required to adopt.\26\ The Ordinance is similar
to the NLRA in many ways, including the right to organize and
bargain collectively. However, the Ordinance also differs from
the NLRA, with some differences favoring labor unions and some
favoring Indian tribes.
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\24\Id.
\25\Id.
\26\Id.
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Mr. Guest stated:
The Ordinance provides labor unions at tribal gaming
facilities with a number of advantages not provided for
under the NLRA. Most importantly, under the Ordinance
unions at tribal casinos: (1) have the right to enter
onto casino property at any time to talk to employees
and post leaflets and posters there in order to
facilitate the organizing of employees; and (2) may
engage in secondary boycotts after an impasse is
reached in negotiations without suffering any penalty
under the Ordinance.
The Ordinance also provides tribes with certain
advantages not enjoyed by employers under the NLRA.
Most importantly, unions representing tribal casino
employees may not strike, picket, or engage in boycotts
before an impasse is reached in negotiations.\27\
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\27\Id. at 9-10.
These are but a few examples of labor and employment laws
enacted by Indian tribes that are similar to the NLRA in
protecting the rights of employees but differ from the NLRA in
order to meet the specific needs of Indian tribes throughout
the United States.
History of tribal sovereignty
Originally, there were few limits on tribal sovereignty. In
1823, the Supreme Court in Johnson v. M'Intosh held that Indian
tribes had no power to grant or dispose of lands to anyone
other than the federal government.\28\ In 1832, the Supreme
Court in Worcester v. Georgia further indicated Indian tribes
did not have the authority to deal with foreign powers.\29\
Aside from these limits, however, Indian tribes retained all
the characteristics of independent sovereigns. The Supreme
Court in Johnson stated Indian tribes ``were admitted to be the
rightful occupants of the soil, with a legal as well as just
claim to retain possession of it, and to use it according to
their own discretion.''\30\ In 1831, in Cherokee Nation v.
Georgia, the Supreme Court noted the Cherokees had ``the
character of . . . a state, as a distinct political society
separated from others, capable of managing its own affairs and
governing itself.''\31\
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\28\21 U.S. (8 Wheat.) 543, 574 (1823). The Court stated that
because of the European discovery of Indian lands, Indian tribes'
``power to dispose of the soil at their own will, to whomsoever they
pleased, was denied by the original fundamental principle, that
discovery gave exclusive title to those who made it.'' Id.
\29\31 U.S. (6 Pet.) 515, 559 (1832):
The Indian nations had always been considered as distinct,
independent political communities, retaining their original natural
rights, as the undisputed possessors of the soil, from time immemorial,
with the single exception of that imposed by irresistible power, which
excluded them from intercourse with any other European potentate than
the first discoverer of the coast of the particular region claimed: and
this was a restriction which those European potentates imposed on
themselves, as well as on the Indians.
\30\21 U.S. (8 Wheat.) 543, 574 (1823).
\31\30 U.S. (5 Pet.) 1, 16 (1831).
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Applicability of labor laws to Indian tribes
While tribal sovereignty has long been recognized, there
has never been any doubt that Congress has the authority to
enact limits. Congress can also choose to retain tribal
sovereignty. Many federal labor laws specifically exclude
Indian tribes from the definition of ``employer,'' including
Title VII of the Civil Rights Act of 1964, Title I of the
Americans with Disabilities Act, and the Worker Adjustment and
Retraining Notification Act. In contrast, statutes of general
application, including the Uniformed Services Employment and
Reemployment Rights Act, Age Discrimination in Employment Act,
Fair Labor Standards Act (FLSA), Family Medical Leave Act,
Employee Retirement Income Security Act (ERISA), and
Occupational Safety and Health Act (OSH Act), are silent
regarding their application to Indian tribes. Federal courts
have held that statutes of general application, such as the
FLSA, ERISA, and the OSH Act, apply to Indian tribes and their
businesses.\32\
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\32\See, e.g., Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009)
(applying FLSA to a retail business located on an Indian reservation
and owned by Indian tribal members); Smart v. State Farm Ins. Co., 868
F.2d 929 (7th Cir. 1989) (applying ERISA to employee benefits plan
established and operated by an Indian tribe for tribal employees);
Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996)
(applying the OSH Act to construction company owned by the Indian tribe
that only operates within the tribal reservation).
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However, there is a key distinction between these laws and
the NLRA. These laws do not force Indian tribes into a binding
relationship with a non-governmental third party.\33\ As
Jefferson Keel, Lieutenant Governor for the Chickasaw Nation,
stated in his testimony to the Subcommittee on Health,
Employment, Labor, and Pensions, ``[W]e submit that the
administrative imposition of a private labor model on any
government, including a tribal government, is incompatible with
the very nature of sovereignty and self-government.''\34\
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\33\See, e.g., 29 U.S.C. Sec. 158(d) (obligation of employer and
union to bargain collectively).
\34\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Jefferson Keel at 1) (emphasis added).
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NLRB jurisdiction over Indian tribes
For almost 30 years, the NLRB held that ``individual
Indians and Indian tribal governments, at least on reservation
lands, are generally free from state or even in most instances
Federal intervention, unless Congress specifically provided to
the contrary.''\35\ However, in 2004 in San Manuel Indian Bingo
and Casino, the Board adopted a ``new approach to considering
Indian owned and operated enterprises,''\36\ holding that the
NLRB has jurisdiction over all tribal activities. Relying on
San Manuel, the Board now asserts jurisdiction on a case-by-
case basis, depending on whether the activity is commercial or
governmental in nature. In response to this unprecedented
encroachment on tribal sovereignty, several members of Congress
have introduced legislation to undo the precedent established
under the San Manuel decision. Most recently, Rep. Todd Rokita
(R-IN) introduced legislation to provide any enterprise or
institution owned and operated by an Indian tribe and located
on its land is not considered an employer, effectively
excluding them from coverage of the NLRA.
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\35\Fort Apache Timber Co., 226 NLRB 503 (1976), overruled by San
Manuel Indian Bingo and Casino, 341 NLRB No. 138 (2004).
\36\341 NLRB 1055, 1064 (2004).
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From 1976 to 2004, the NLRB held that the location of an
Indian business was determinative with respect to the NLRB's
jurisdiction and that the text of the NLRA supported this
location-based rule. In Fort Apache, the NLRB ruled the NLRA
did not apply to a tribal government operating a timber mill on
Indian land, finding the mill to be akin to a political
subdivision of a state government and therefore exempt.\37\ In
Sac and Fox Industries, Ltd., the Board found the NLRA
applicable to off-reservation tribal enterprises, such as
logging mills.\38\ Together, these cases created the ``on
Indian lands/off Indian lands'' rule. If the Indian enterprise
was located on Indian land generally, it was not subject to the
NLRA, but those located off Indian land were subject to the
NLRA.
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\37\Fort Apache, 226 NLRB at 506.
\38\307 NLRB 241 (1992).
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In 2004 in San Manuel Indian Bingo and Casino, a divided
NLRB reversed course. Relying on controversial dicta in Federal
Power Commission v. Tuscarora Indian Nation stating that a
``general statute in terms applying to all persons includes
Indians and their property interests,''\39\ the NLRB held the
NLRA applies to tribal governments, and federal Indian policy
does not preclude application of the NLRA to commercial
activities on tribal land.\40\ In deciding San Manuel, the NLRB
noted the NLRA does not expressly exclude Indian tribes.\41\
Therefore, according to the NLRB, the issue is left to the
Board's discretion. Now, relying on San Manuel, the Board would
determine whether to assert jurisdiction based on the conduct
at issue. Where the conduct is commercial in nature, employing
significant numbers of non-Indians, and catering to non-Indian
customers, the Board concluded that ``the special attributes of
[tribal] sovereignty are not implicated.''\42\ In contrast,
when tribes are acting with regard to the particularized sphere
of traditional tribal or governmental functions, the Board
indicated it should defer to the tribes by declining to assert
its discretionary jurisdiction.\43\ Additionally, the Board
would not assert jurisdiction if the application of the law
would abrogate treaty rights or there was ``proof'' in the
statutory language or legislative history that Congress did not
intend the Act to apply to Indian tribes.\44\ Then-Member
Schaumber strongly dissented, stating that ``rebalancing of
competing policy interests involving Indian sovereignty is a
task for Congress to undertake.''\45\ On appeal, the U.S. Court
of Appeals for the District of Columbia Circuit upheld the
NLRB's holding in San Manuel.\46\
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\39\362 US 99, 116 (1960). In his dissenting opinion in San Manuel,
then-Member Schaumber argued this statement in Tuscarora Indian Nation
is questionable dicta, lacks any foundation in Indian law, and has been
abandoned, if not overruled, by the Supreme Court. 341 NLRB at 1070-74.
\40\341 NLRB at 1057-62.
\41\Id. at 1058. In fact, neither the text of the NLRA nor its
legislative history reference coverage of Indian tribes.
\42\Id. at 1062.
\43\Id. at 1063.
\44\Id. at 1059.
\45\Id. at 1065 (Schaumber, Member, dissenting).
\46\San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C.
Cir. 2007).
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In testimony before the Subcommittee on Health, Employment,
Labor, and Pensions, Jefferson Keel, Lieutenant Governor of the
Chickasaw Nation, criticized the NLRB's decision in San Manuel
for diminishing tribal sovereignty. He stated:
[The NLRB's San Manuel ruling] reversed seventy years
of settled administrative practice and signaled an
effort to expand federal administrative jurisdiction
over tribal sovereigns. . . . [The Board's] approach
had been widely criticized as contrary to established
federal law which presumes a statute does not apply to
abridge tribal sovereignty in the absence of express
evidence that Congress intended such a result. Turning
this settled rule of Indian law upside-down, the
Board's newly-fashioned analysis shifts the burden to
the tribal sovereign to show either that Congress
intended to exempt the tribe from the statutory scheme,
or that a tribe-specific element (such as intramural
affairs or a controlling treaty provision) limits the
Act's jurisdictional reach.\47\
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\47\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Jefferson Keel at 4) (emphasis in original).
Rodney Butler, chairman of the Mashantucket Pequot Nation,
similarly criticized San Manuel in his testimony before the
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subcommittee:
The San Manuel decision was not only a complete
reversal of the NLRB's recognition of tribes as
sovereigns, it is also an affront to Indian Country. It
suggests that Indian tribes are incapable of developing
laws and institutions to protect the rights of
employees who work on our reservations. Our experience
proves nothing could be further from the truth.\48\
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\48\Id. (written testimony of the Hon. Rodney Butler at 2).
Robert Odawi Porter, president of the Seneca Nation of
Indians, also expressed concern in his testimony to the
subcommittee about San Manuel's erosion of tribal sovereignty.
He stated, ``Many aspects of our treaty-recognized freedoms
have been eroded over time. A prime example of this legal
regression can be found in recent tribal labor management
decisions taken by the [NLRB] and the federal courts in the
[San Manuel case].''\49\
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\49\Examining Proposals to Strengthen the National Labor Relations
Act, supra note 1, at 8-9 (written testimony of the Hon. Robert Odawi
Porter).
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Witnesses further testified to the subcommittee that tribal
sovereignty includes parity with federal, state, and local
governments, which San Manuel has undermined. Regarding the
Mashantucket Pequot Nation, Chairman Butler stated, ``We seek
to be treated just like every other sovereign under the NLRA--
nothing more--nothing less.''\50\ In his testimony, Richard
Guest of the Native American Rights Fund similarly argued for
equal treatment of governments:
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\50\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Rodney Butler at 2).
[I]t is time for Congress to provide parity for
tribal governments under the NLRA. In this context,
parity encompasses the quality of being treated equally
under the law alongside Federal, State and Local
governments. Tribal governments are entitled to the
same freedom to choose the appropriate time, place and
manner for regulating union activity on Indian lands
and collective bargaining for its employees.\51\
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\51\Id. (written testimony of Richard Guest at 1-2) (emphasis
omitted).
Lieutenant Governor Keel also stated, ``All governments are
entitled to equal respect under the law, precisely as Congress
in 1935 intended.''\52\ In addition, regarding the Senecan
Nation of Indians, President Porter noted, ``We have always
insisted that federal law treat our tribal governments as it
treats other governments.''\53\
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\52\Id. (written testimony of the Hon. Jefferson Keel at 1)
(emphasis in original).
\53\Examining Proposals to Strengthen the National Labor Relations
Act, supra note 1, at 9 (written testimony of the Hon. Robert Odawi
Porter).
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In 2007 in Foxwoods Resort Casino,\54\ the NLRB reinforced
its decision in San Manuel. The Board noted that 98 percent of
the Mashantucket Pequot Tribe's revenues were derived from the
operation of the casino, which it used to fund various
endeavors aimed toward promoting the tribal community and
tribal self-government.\55\ However, the Board exerted
jurisdiction because the casino was an exclusively commercial
venture generating income for the tribe almost exclusively from
the general public, competed in the same commercial arena with
other non-tribal casinos, overwhelmingly employed non-tribal
members, and actively marketed to the general public.\56\
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\54\No. 34-RC-2230 (Oct. 24, 2007) (decision and direction of
election).
\55\Id. at 4.
\56\Id. at 13.
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In 2013 in Soaring Eagle Casino and Resort,\57\ the NLRB
exerted jurisdiction over another Indian tribe. The Saginaw
Chippewa Tribe operates a casino on the Isabella Reservation in
Isabella County, Michigan. Treaties made in 1855 and 1864 with
the federal government afford the Saginaw exclusive use,
ownership, occupancy, and self-governance of a permanent
homeland in Isabella County.\58\ Despite such strong treaty
language, the NLRB, applying San Manuel, determined the general
treaty language devoting land to a tribe's exclusive use was
insufficient to preclude application of federal law.\59\ As
such, the Board exerted jurisdiction and ordered the tribe to
rehire an employee who had been fired for union organizing, pay
four years of back pay, and post notices in the workplace
admitting it had violated federal labor law and reiterating
employees' rights to unionize.\60\
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\57\359 NLRB No. 92, 2013 WL 1646049 (2013), vacated (2014), aff'd,
361 NLRB No. 73 (2014), aff'd, Soaring Eagle Casino and Resort v. NLRB,
791 F.3d 648 (2015).
\58\Soaring Eagle Casino and Resort, 2013 WL 1646049, *4.
\59\Id. at *12.
\60\Id. at *19.
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In contrast, on June 4, 2015, after years of litigation,
the NLRB in Chickasaw Nation\61\ unanimously declined to assert
jurisdiction. At issue in the case was whether the Chickasaw
Nation, in its capacity as operator of the WinStar World
Casino, is subject to the Board's jurisdiction. Applying San
Manuel, the Board found the NLRA would abrogate treaty rights,
specific to the Chickasaw Nation, contained in the 1830 Treaty
of Dancing Rabbit Creek. As such, the Board declined to assert
jurisdiction.\62\
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\61\362 NLRB No. 109, 2015 WL 3526096 (2015).
\62\2015 WL 3526096, *3.
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Although the Board's decision in Chickasaw Nation
recognized the tribe's rights as a government under the treaty,
the decision only added to the uncertainty other Indian tribes
face with respect to NLRA jurisdiction. In his testimony before
the Subcommittee on Health, Employment, Labor, and Pensions,
Lieutenant Governor Keel of the Chickasaw Nation stated:
While the new Board ruling establishes an important
precedent in recognizing the Chickasaw Nation's tribal
rights as a government, it also creates enormous
uncertainty for other American Indian tribes across the
country whose treaty language (if any) may well differ
from the Chickasaw Nation's treaty language. Further,
it has the consequence of making the NLRB the arbiter
of tribal treaty rights, instead of Congress and the
Courts--even though the NLRB itself has repeatedly
acknowledged it possesses no expertise whatsoever in
Indian law or matters of tribal sovereignty.\63\
---------------------------------------------------------------------------
\63\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Jefferson Keel at 4).
In June of 2015, in NLRB v. Little River Band of Ottawa
Indian Tribal Government, a divided U.S. Court of Appeals for
the Sixth Circuit ruled the NLRB may apply the NLRA to a
Michigan casino operating on tribal land.\64\ The majority held
although the NLRA is silent on the issues, the statutory terms
``employer'' and ``person'' both encompass Indian tribes.\65\
Additionally, the majority found nothing in federal Indian law
forecloses application of the NLRA to the band's operation of
its casino and regulation of its employees.\66\ Dissenting,
Judge David McKeague argued principles of tribal sovereignty
should leave the band free to regulate its own labor relations
at the casino.\67\ In his testimony before the Subcommittee,
Lieutenant Governor Keel cited the Sixth Circuit's decision
upholding the Board's jurisdiction in Little River Band as
evidence of the ``arbitrary risk that arises from shifting
control over tribal sovereignty to a quasi-independent federal
agency.''\68\
---------------------------------------------------------------------------
\64\788 F.3d 537 (6th Cir. 2015).
\65\Id. at 543.
\66\Id. at 544-56.
\67\Id. at 556 (McKeague, J., dissenting).
\68\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Jefferson Keel at 4).
---------------------------------------------------------------------------
Conclusion
The cases described above illustrate the subjective nature
of the Board's test and the need for statutory clarity with
respect to NLRB jurisdiction over tribal enterprises. The
Board, with no particular experience in federal Indian or
treaty law, determines whether the NLRA would interfere with
tribal sovereignty or abrogate treaty rights. Such a
determination is highly subjective, leaving tribes covered by
treaties with little certainty. Worse, sovereign tribes without
treaties are almost certainly covered by the NLRA, creating
different classes of tribes under the NLRA. The Tribal Labor
Sovereignty Act of 2015 creates parity with the states and
between tribes ensuring tribal sovereignty.
Section-by-Section Analysis
The following is a section-by-section analysis of the
Amendment in the Nature of a Substitute offered by Rep. Rokita
and reported favorably by the Committee.
Section 1. Provides the short title is the ``Tribal Labor
Sovereignty Act of 2015.''
Section 2. Amends the National Labor Relations Act to
exclude Indian tribes, and any enterprise or institution owned
and operated by an Indian tribe and located on its Indian
lands, from the definition of employer. Additionally, it
defines the term Indian tribe, Indian, and Indian land.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 511, the Tribal Labor Sovereignty Act of 2015,
protects tribal sovereignty and the right to tribal self-
governance. The bill codifies the standard of the NLRB prior to
2004 by amending the NLRA to provide that any enterprise or
institution owned and operated by an Indian tribe and located
on its land is not considered an employer, excluding such from
coverage of the NLRA.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
Earmark Statement
H.R. 511 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House rule XXI.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against. No record votes were taken on
H.R. 511.
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House rule XIII, the
goals of H.R. 511 are to protects tribal sovereignty and the
right to tribal self-governance.
Duplication of Federal Programs
No provision of H.R. 511 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The committee estimates that enacting H.R. 511 does not
specifically direct the completion of any specific rule makings
within the meaning of 5 U.S.C. 551.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the committee's oversight findings and recommendations are
reflected in the body of this report.
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the committee has received
the following estimate for H.R. 511 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 24, 2015.
Hon. John Kline,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 511, the Tribal
Labor Sovereignty Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Anthony.
Sincerely,
Keith Hall, Director.
Enclosure.
H.R. 511--Tribal Labor Sovereignty Act of 2015
H.R. 511 would add tribes to the list of entities that are
excluded from the definition of ``employer'' for purposes of
the National Labor Relations Act. Through the National Labor
Relations Board (NLRB), the National Labor Relations Act
protects the rights of most private-sector employees to form a
union and to bargain collectively. Adding tribes to the list of
excluded employers would treat them similarly to state and
local governments. Currently, the NLRB generally asserts
jurisdiction over the commercial enterprises owned and operated
by Indian tribes, even if they are located on a tribal
reservation. However, the NLRB does not assert jurisdiction
over tribal enterprises that carry out traditional tribal or
governmental functions.
Enacting H.R. 511 would not significantly affect the
workload of the NLRB, so it would have no effect on the federal
budget. The bill would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
H.R. 511 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA).
By excluding tribal enterprises located on tribal land from
the definition of employer for purposes of the National Labor
Relations Act, the bill would eliminate the right of employees
of such enterprises to file a claim, individually or through a
union, regarding certain labor practices. Currently, employees
may file a claim against tribal employers over which the NLRB
asserts jurisdiction alleging unfair labor practices under the
act that prohibit or interfere with collective activities to
improve wages and working conditions. By eliminating the right
of employees to file such claims with the NLRB, the bill would
impose a private-sector mandate.
The direct cost of the mandate would be the value of
forgone monetary awards resulting from claims that would have
been filed with the NLRB in the absence of the bill. According
to the NLRB, it currently receives about 20,000 to 30,000
claims in total each year from employees, unions, or employers
alleging unfair labor practices and more than half of all
claims are withdrawn or dismissed. Other claims may be settled
by the parties or adjudicated by the NLRB. Successful claims
may result in remedies such as reinstatement of discharged
employees and back pay for the period of unemployment, as well
as payment of dues, fines or other costs. In fiscal year 2014,
claims with the NLRB resulted in about 2,400 cases in which
employees were reinstated and in awards of about $45 million in
back pay and other costs. In testimony, the NLRB indicated that
it has asserted jurisdiction over tribal enterprises in four
decisions since 2004. Based on those data, CBO estimates that
the cost of the mandate would not be substantial and would fall
below the annual threshold established in UMRA for private-
sector mandates ($154 million in 2015, adjusted annually for
inflation).
Successful claims filed with the NLRB also may result in a
requirement on employers that would allow their employees to
form a union and bargain collectively. Imposing such a
requirement on employers may have a broader impact than that
measured by the value of forgone monetary awards and
settlements for claims brought before the NLRB. However, under
UMRA that broader impact is not considered part of the direct
cost of the mandate.
On June 25, 2015, CBO provided a cost estimate for S. 248
as ordered reported by the Senate Committee on Indian Affairs
on June 10, 2015. The two bills are identical, and the
estimated budgetary effect is the same. The private-sector
mandate and the estimate of mandate costs is also the same.
This estimate provides additional information about the basis
of the estimate of mandate costs relative to annual threshold
established in UMRA.
The CBO staff contact for this estimate is Christina Hawley
Anthony. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 511. However,
clause 3(d)(2)(B) of that rule provides that this requirement
does not apply when the committee has included in its report a
timely submitted cost estimate of the bill prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
NATIONAL LABOR RELATIONS ACT
* * * * * * *
definitions
Sec. 2. When used in this Act--
(1) The term ``person'' includes one or more individuals,
labor organizations, partnerships, associations, corporations,
legal representatives, trustees, trustees in cases under title
11 of the United States Code, or receivers.
(2) The term ``employer'' includes any person acting as an
agent of an employer, directly or indirectly, but shall not
include the United States or any wholly owned Government
corporation, or any Federal Reserve Bank, or any State or
political subdivision thereof, or any Indian tribe, or any
enterprise or institution owned and operated by an Indian tribe
and located on its Indian lands, or any person subject to the
Railway Labor Act, as amended from time to time, or any labor
organization (other than when acting as an employer), or anyone
acting in the capacity of officer or agent of such labor
organization.
(3) The term ``employee'' shall include any employee, and
shall not be limited to the employees of a particular employer,
unless the Act explicitly states otherwise, and shall include
any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any other
regular and substantially equivalent employment, but shall not
include any individual employed as an agricultural laborer, or
in the domestic service of any family or person at his home, or
any individual employed by his parent or spouse, or any
individual having the status of an independent contractor, or
any individual employed as a supervisor, or any individual
employed by an employer subject to the Railway Labor Act, as
amended from time to time, or by any other person who is not an
employer as herein defined.
(4) The term ``representatives'' includes any individual or
labor organization.
(5) The term ``labor organization'' means any organization of
any kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
(6) The term ``commerce'' means trade, traffic, commerce,
transportation, or communication among the several States, or
between the District of Columbia or any Territory of the United
States and any State or other Territory, or between any foreign
country and any State, Territory, or the District of Columbia,
or within the District of Columbia or any Territory, or between
points in the same State but through any other State or any
Territory or the District of Columbia or any foreign country.
(7) The term ``affecting commerce'' means in commerce, or
burdening or obstructing commerce or the free flow of commerce,
or having led or tending to lead to a labor dispute burdening
or obstructing commerce or the free flow of commerce.
(8) The term ``unfair labor practice'' means any unfair labor
practice listed in section 8.
(9) The term ``labor dispute'' includes any controversy
concerning terms, tenure or conditions of employment, or
concerning the association or representation of persons in
negotiating, fixing, maintaining, changing, or seeking to
arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of
employer and employee.
(10) The term ``National Labor Relations Board'' means the
National Labor Relations Board provided for in section 3 of
this Act.
(11) The term ``supervisor'' means any individual having
authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to direct them,
or to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
(12) The term ``professional employee'' means--
(a) any employee engaged in work (i) predominantly
intellectual and varied in character as opposed to
routine mental, manual, mechanical, or physical work;
(ii) involving the consistent exercise of discretion
and judgment in its performance; (iii) of such a
character that the output produced or the result
accomplished cannot be standardized in relation to a
given period of time; (iv) requiring knowledge of an
advanced type in a field of science or learning
customarily acquired by a prolonged course of
specialized intellectual instruction and study in an
institution of higher learning or a hospital, as
distinguished from a general academic education or from
an apprenticeship or from training in the performance
of routine mental, manual, or physical processes; or
(b) any employee, who (i) has completed the courses
of specialized intellectual instruction and study
described in clause (iv) of paragraph (a), and (ii) is
performing related work under the supervision of a
professional person to qualify himself to become a
professional employee as defined in paragraph (a).
(13) In determining whether any person is acting as an
``agent'' of another person so as to make such other person
responsible for his acts, the question of whether the specific
acts performed were actually authorized or subsequently
ratified shall not be controlling.
(14) The term ``health care institution'' shall include any
hospital, convalescent hospital, health maintenance
organization, health clinic, nursing home, extended care
facility, or other institution devoted to the care of sick,
infirm, or aged person.
(15) The term ``Indian tribe'' means any Indian tribe, band,
nation, pueblo, or other organized group or community which is
recognized as eligible for the special programs and services
provided by the United States to Indians because of their
status as Indians.
(16) The term ``Indian'' means any individual who is a member
of an Indian tribe.
(17) The term ``Indian lands'' means--
(A) all lands within the limits of any Indian
reservation;
(B) any lands title to which is either held in trust
by the United States for the benefit of any Indian
tribe or individual or held by any Indian tribe or
individual subject to restriction by the United States
against alienation; and
(C) any lands in the State of Oklahoma that are
within the boundaries of a former reservation (as
defined by the Secretary of the Interior) of a
federally recognized Indian tribe.
* * * * * * *
MINORITY VIEWS
Introduction
The Tribal Labor Sovereignty Act of 2015 (H.R. 511) strips
workers of their rights to organize and collectively bargain at
any enterprise owned and operated by an Indian tribe that is
located on tribal lands. It does this by excluding such tribal
enterprises from the jurisdiction of the National Labor
Relations Act by amending the definition of a covered
``employer.''
This bill arises in a dispute between two solemn and
competing principles: the rights that Indian tribes possess as
``distinct, independent political communities, retaining their
original natural rights in matters of local self-
government,''\1\ and the right of workers to organize, bargain
collectively, and engage in concerted activities for mutual aid
and protection.
---------------------------------------------------------------------------
\1\Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).
---------------------------------------------------------------------------
Rather than attempting to reconcile these competing
interests, H.R. 511 chooses sovereignty for some over the
rights of others, and it strips hundreds of thousands of
workers--most of whom are not members of tribes--of their voice
in the workplace in one fell swoop just because they happen to
work at a tribal enterprise on tribal lands.
As the AFL-CIO has noted, ``workers cannot not be left
without any legally enforceable right to form unions and
bargain collectively in instances where they are working for a
tribal enterprise which is simply a commercial operation
competing with non-tribal enterprises.''
This bill, which enjoys the support of the U.S. Chamber of
Commerce, cloaks its anti-union agenda in the respectable garb
of tribal sovereignty. It is another attempt in the quest to
dismantle labor unions and strip workers of their ability to
bargain for better pay and working conditions.
HISTORY OF NLRB JURISDICTION CONCERNING INDIAN TRIBAL ENTERPRISES
The National Labor Relations Act (NLRA) is silent with
respect to its applicability to tribal enterprises. Prior to
2004, the National Labor Relations Board (NLRB) did not
exercise jurisdiction over enterprises located on tribal
lands,\2\ but did do so for tribal enterprises located off
tribal lands.\3\ This bright-line geographic test was both
over-inclusive and under-inclusive. For example, this test
allowed the NLRB to assert jurisdiction over an off-reservation
hospital run by a tribal consortium primarily serving tribal
members--a function of tribal self-governance and should have
been excluded from coverage.\4\ But the test also failed to
include commercial enterprises on tribal lands where the
majority of employees were not tribal members, the majority of
its customers were not members of the tribe, and its functions
did not touch on essential matters of self-governance.
---------------------------------------------------------------------------
\2\In the 1976 Fort Apache Timber Co. case, the Board declined to
assert jurisdiction, holding that sovereign tribal governments,
including a tribe's ``self-directed enterprise on the reservation,''
were ``implicitly exempt'' from the NLRA's definition of ``employer.''
226 NLRB 503, 504-06 (1976).
\3\Unlike the enterprise at issue in Fort Apache Timber, Co., the
Board ruled in 1992 that a tribally-owned and controlled factory
operated off of the reservation was subject to NBLRB jurisdiction. Sac
& Fox Industries, 307 NLRB 241 (1992).
\4\Yukon-Kuskokwim Health Corp. v. N.L.R.B., 328 NLRB No.86 (1999),
remanded, 234 F.3d 714 (D.C. Cir. 2000).
---------------------------------------------------------------------------
THE 2004 NLRB'S DECISION IN THE SAN MANUEL CASE IS ROOTED IN
LONGSTANDING JUDICIAL DOCTRINE REGARDING LAWS OF GENERAL APPLICABILITY
TO INDIAN TRIBES
In 2004, during the Bush Administration, the NLRB altered
its jurisdictional test over tribal enterprises in the San
Manuel Indian Bingo and Casino case. A 4-1 majority that was
led by former Republican Chair Robert Battista asserted NLRA
jurisdiction over tribal enterprises, except where doing so
would:
1) touch on tribal rights of self-governance in
purely intramural matters;
2) abrogate rights guaranteed by an Indian treaty; or
3) be contrary to congressional intent as indicated
in the legislative history or statutory language.
The San Manuel decision is rooted in longstanding judicial
doctrine used to determine when federal statutes of general
applicability should apply to Indian tribes:
The Supreme Court stated in the 1960 Tuscarora
Indian Nation case that ``it is now well settled by many
decisions of this Court that a general statute in terms
applying to all persons includes Indians and their property
interests.''\5\
---------------------------------------------------------------------------
\5\FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960).
---------------------------------------------------------------------------
Narrowing that doctrine, a 1985 Ninth Circuit
Court of Appeals case known as Donovan v Coeur d'Alene Tribal
Farm\6\ determined that the Occupational Safety and Health
Administration (OSHA) had jurisdiction to enforce federal
health and safety laws at a farm operated by a tribe and
located on a tribe's reservation provided that the law did not:
1) touch on tribal rights of self-governance in purely
intramural matters; 2) abrogate rights guaranteed by Indian
treaty; or 3) be contrary to congressional intent as indicated
in the legislative history or statutory language. In applying
this test, the Court stated:
---------------------------------------------------------------------------
\6\Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir.
1985).
``The operation of a farm that sells produce on the
open market and in interstate commerce is not an aspect
of tribal self-government. Because the Farm employs
non-Indians as well as Indians, and because it is in
virtually every respect a normal commercial farming
enterprise, we believe that its operation free of
federal health and safety regulations is neither
profoundly intramural . . . nor essential to self-
---------------------------------------------------------------------------
government.''
Using the same three-prong test in Coeur d'Alene, the
NLRB's San Manuel decision carefully balances tribal
sovereignty and the fundamental right of workers to organize.
The Coeur d'Alene framework has since been applied by the
Second, Sixth, Seventh, Ninth, and Eleventh Circuits.\7\
---------------------------------------------------------------------------
\7\Soaring Eagle Casino & Resort v. NLRB (July 1, 2015) granted the
NLRB jurisdiction based on 6th Circuit precedent involving another
tribal casino (NLRB v. Little River Band of Ottawa Indians Tribal
Government (June 9, 2015)); however, the majority in the Soaring Eagle
case disputed whether the Coeur d'Alene framework is the proper basis
for determining whether federal statutes of general applicability
should apply to Indian tribes.
---------------------------------------------------------------------------
NLRB POLICY BALANCES TRIBAL SOVEREIGNTY AND WORKERS' RIGHTS TO ORGANIZE
AND BARGAIN
In the San Manuel decision, the NLRB singled out its desire
``to balance the Board's interest in effectuating the policies
of the Act with its desire to accommodate the unique status of
Indians in our society and legal culture.''\8\ The Board noted
that when a tribe ``is fulfilling traditionally tribal or
government functions'' that do not involve ``non-Indians or
substantially affect interstate commerce,'' then ``the Board's
interest in effectuating the policies of the NLRA is likely to
be lower.''
---------------------------------------------------------------------------
\8\San Manuel Indian Bingo and Casino, 341 NLRB 1055, 1062 (2004)
(Chairman Battista and Members Liebman and Walsh; Member Schaumber,
dissenting), enforced, 475 F.3d 1306 (D.C. Cir. 2007).
---------------------------------------------------------------------------
Thus, the NLRB has found that some enterprises--such as a
health clinic that serves primarily tribal members-- are not
suitable for federal jurisdiction where it is ``fulfilling the
Federal Government's trust responsibility to provide free
health care to Indians.''\9\ The NLRB likewise decided that it
lacked authority to assert jurisdiction over a casino run by
the Chickasaw tribe in Oklahoma, because doing so would
abrogate an 1830 treaty which exempted the tribe from federal
laws unless they involved ``legislation over Indian
Affairs''.\10\ Both the tribal health clinic and the Chickasaw
Tribe casino decisions block NLRB jurisdiction because these
enterprises fall within one of the 3 exceptions articulated in
Coeur d'Alene.
---------------------------------------------------------------------------
\9\Yukon Kuskolcwim Health Corp., 341 NLRB 1075 (2004) (on remand
from the D.C. Circuit, 234 F.3d 714 (2000)).
\10\Chickasaw Nation d/b/a Winstar World Casino, 362 NLRB No. 109
(June 4, 2015).
---------------------------------------------------------------------------
Using this same 3 prong test, the NLRB has exercised
jurisdiction to protect worker rights guaranteed under the NLRA
which involve casinos patronized and operated overwhelmingly by
non-tribal members, because neither treaty rights, nor
essential self-governance matters, were implicated.'' \11\
---------------------------------------------------------------------------
\11\See, e.g., Little River Band of Ottawa Indians Tribal Gov't,
361 NLRB No. 45 (Sept. 15, 2014), enforced No. 14-2239 2015 WL 3556005
(6th Cir. June 9,2015); Casino Pauma, 362 NLRB No. 52 (Mar. 31, 2015);
Soaring Eagle Casino & Resort, An Enterprise of the Saginaw Chippewa
Indian Tribe, 361 NLRB No. 73 (Oct. 27, 2014); Mashantucket Pequot
Gaming Enterprise d/b/a Fox-woods Resort Casino, 353 NLRB No. 32 (2008)
---------------------------------------------------------------------------
TRIBAL ENTERPRISES ARE GOVERNED BY OTHER EMPLOYMENT LAWS, BUT H.R. 511
ONLY SINGLES OUT WORKERS' RIGHTS TO ORGANIZE UNIONS AND COLLECTIVELY
BARGAIN
Tribal sovereignty is not absolute with respect to federal
laws of general applicability. Using the Coeur d'Alene
framework, numerous courts have upheld the applicability of
other federal employment laws to Indian tribes including:
Fair Labor Standards Act (FLSA)\12\
---------------------------------------------------------------------------
\12\Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009). (The overtime
provisions of the Fair Labor Standards Act apply to a retail business
located on an Indian reservation and owned by Indian tribal members).
---------------------------------------------------------------------------
Occupational Safety and Health Act (OSHA)\13\
---------------------------------------------------------------------------
\13\Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2nd Cir.
1996) (applying OSHA to a tribe-operated construction business).
---------------------------------------------------------------------------
Employee Retirement Income Security Act
(ERISA)\14\
---------------------------------------------------------------------------
\14\Smart v. State Farm Ins., 868 F.2d 929 (7th Cir. 1989)
(concluding ERISA applied to a health center owned and operated by an
Indian tribe on its reservation). Also: Lumber Industry Pension Fund v.
Warm Springs Forest Products Industries, 939 F.2d 683 (9th Cir. 1991).
(Permitting the pension fund to sue the tribally-operated mill under
ERISA will not usurp the tribe's decision-making powers).
---------------------------------------------------------------------------
Title III (public accommodations) of the Americans
with Disabilities Act (ADA)\15\
---------------------------------------------------------------------------
\15\Florida Paraplegic Association v. Miccosukee Tribe of Florida,
166 F.3d 1126 (11th Cir. 1999) (Affirming that Title III of the
Americans with Disability Act applies to restaurant and gaming facility
operated by an Indian tribe).
---------------------------------------------------------------------------
Thus, the effort to focus solely on the National Labor
Relations Act to the exclusion of other federal labor laws,
suggests that animus toward labor unions motivates this
legislation--which has been wrapped in the laudable garb of
sovereignty.
PARITY AND SOVEREIGNTY ARE NOT VALID GROUNDS FOR TAKING AWAY WORKERS'
RIGHTS, ESPECIALLY WHERE TRIBES ARE EXEMPTED FROM LABOR LAWS THAT COVER
STATE AND LOCAL GOVERNMENTS
Proponents' primary argument in favor of H.R. 511 is that
the NLRA does not apply to state and local governments, and
tribes should have parity since they are also a sovereign
government. Under this principle, tribes contend that they
should be able to decide whether to allow employees to form
unions or not under a tribal labor relations ordinance, just as
state governments are free to decide whether to allow public
employees to form unions or not. This parity argument falls
short in three important ways:
1) Tribal casinos and similar businesses are commercial
enterprises in direct competition with similar non-tribal
businesses. Although these enterprises raise revenues for the
tribe, these are not inherently governmental functions. Thus,
the NLRB's regulation of labor relations does not impair an
essential element of the tribe's sovereignty, especially in
matters where the majority of employees are not tribal members.
Courts have found that the total impact on tribal sovereignty
from NLRA jurisdiction is ``not sufficient to demand a
restrictive construction of the NLRA.''\16\
---------------------------------------------------------------------------
\16\San Manuel Indian Bingo and Casino, 475 F.3d 1306 (D.C. Cir.
2007).
---------------------------------------------------------------------------
2) Approximately 75% of the 600,000 employees of tribal
casinos are non-Indians.''\17\ Employees of tribal enterprises,
who are not enrolled members of the tribe, are prohibited from
having any voice or the right to advocate for the establishment
or repeal of labor and employment laws, unlike comparable
employment in local or state government. Since the majority of
employees at tribal enterprises lack parity with the rights
enjoyed by state and local government employees to petition
their employer, the parity argument between tribal government
and state and local government lacks a valid basis.
---------------------------------------------------------------------------
\17\Dwanna L. Robertson, The Myth of Indian Casino Riches, Indian
Country Today Media Network (June 23, 2012) http://
indiancountrytodaymedianetwork.com/2012/06/23/myth-indian-casino-
riches.
---------------------------------------------------------------------------
3) Tribes are exempted from employment laws which apply to
state and local governments. State and local governments are
covered by Title VII of the Civil Rights Act and the
nondiscrimination provisions of the Americans with Disabilities
Act, whereas Indian tribes are expressly exempted from
coverage. If tribes want parity with state and local
governments, they should be prepared to be covered by the same
federal statutes as those applicable to local and state
governments.
STRIPPING WORKERS' RIGHTS AND REMEDIES CAN LEAD TO LEGALLY SANCTIONED
WORKER EXPLOITATION
As noted above, Title VII of the Civil Rights Act prohibits
employment discrimination by all governments except tribal
governments and enterprises. As a result, employees of a tribal
enterprise who are subjected to sexual harassment or other
forms of discrimination cannot bring a claim to the Equal
Employment Opportunity Commission (EEOC) or in federal courts--
even when the alleged perpetrator and victim are both non-
tribal members employed at the tribal enterprise.
For example, a woman who took a job with a ``swamp safari''
run by a tribe in Florida filed suit against the tribe after
her employers ``repeatedly touched her, made sexual comments
and degrading remarks, and even suggested that she could make a
`quick $10,000' from a wealthy client.''\18\ The U.S. District
Court for the Southern District of Florida dismissed her case
for lack of subject matter jurisdiction, citing the tribe's
sovereign immunity. She was not affiliated with the tribe and
had no further recourse.
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\18\Scott D. Danahy, License to Discriminate: The Application of
Sovereign Immunity to Employment Discrimination Claims Brought By Non-
Native American Employees of Tribally Owned Businesses, 25 Fla. S. Law
Rev. 679 (1998).
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In another case, several female former employees of Thunder
Valley, a tribal casino in northern California, filed a class-
action discrimination lawsuit in 2005. One woman reported
having been sexually assaulted by a casino executive. A second
woman reported that the same executive fondled and forcibly
kissed her as well. Several other women reported suffering
sexual harassment, age and sex discrimination, and wrongful
termination. None of the plaintiffs were tribal members, nor
was the alleged attacker. Regardless, their case was dismissed
for lack of subject-matter jurisdiction and because of tribal
sovereign immunity.\19\
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\19\Shivani Sutaria, Employment Discrimination in Indian-Owned
Casinos: Strategies to Providing Rights and Remedies to Tribal Casino
Employees, 8 J. Law & Social Challenges 132 (2006).
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An hourly worker--an enrolled member of the Pomo Tribe--who
is employed at a tribal casino in Sonoma County, California
testified before the Education and the Workforce Committee that
without NLRA protections workers felt they had no recourse to
address sexual harassment. He stated:
``I have seen sexual harassment at the casino. A
general manager going up to women telling them if they
want promotions they had to sleep with him. The women
were fired. We all complained. Managers at the Stations
Casinos [which was managing the casino on behalf of the
tribe] told us it was a sovereign nation.
It was bad enough that Title VII of the Civil Rights
Act doesn't apply to Native businesses. Congress should
not make the situation worse by taking away protections
under the National Labor Relations Act. The NLRA
enables workers who have been subjected to harassment
and other forms of discrimination to get together and
complain about it. Take away the NLRA, you don't only
have sexual harassment but no ability to speak about
it.''\20\
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\20\Oral testimony of Gary Navarro, Legislative Hearing on H.R.
511, the Tribal Labor Sovereignty Act of 2015, Committee on Education
and the Workforce, U.S. House of Representatives, June 16, 2015.
Carving tribes out of Title VII coverage led directly to
these unjust results. Similarly, carving tribes out of the NLRA
may give rise to new forms of legally-sanctioned worker
exploitation.
H.R. 511 WOULD JEOPARDIZE THE ENFORCEMENT OF EXISTING LABOR CONTRACTS
AND UNDERMINE ESTABLISHED BARGAINING RELATIONSHIPS
Thousands of employees at commercial tribal enterprises--
such as casinos--are currently covered by collective-bargaining
agreements. If H.R. 511 were enacted, it is doubtful these
labor contracts would remain fully enforceable. When a labor
contract expires, a tribe could unilaterally terminate the
established bargaining relationship with the union without
legal consequence. Without a union, these jobs will likely
revert to low-wage service jobs, instead of being jobs that
allow workers to climb the ladder to the middle class.
UNION AGREEMENTS HELP HOURLY SERVICE WORKERS ESCAPE LOW WAGES AND
BENEFITS AT TRIBAL GAMING ENTERPRISES
Most Indian casinos are large scale commercial operations,
which overwhelmingly employ non-Indians and serve non-Indian
customers. There were 449 tribal gaming facilities in 28
states, which earned more than $28 billion in revenue in
2013.\21\ An estimated 43% of all legal gaming revenues in the
U.S. is now generated at tribally-owned casinos.
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\21\Indian Gaming: Regulation and Oversight by the Federal
Government, States, and Tribes, U.S. Government Accountability Office,
GAO-15-355 (2015), http://www.gao.gov/assets/680/670603.pdf; NIGC
Tribal Gaming Revenues, National Indian Gaming Commission, http://
www.nigc.gov/Link_Click.aspx?fileticket=15QAX4uZyA%3d&tabid=67.
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According to a 2013 report by UNITE HERE, the
average low-wage California tribal casino worker makes $10.02
per hour or $20,841 annually. At this level, a family of four
with one breadwinner would be living at 88% of the federal
poverty level.
UNITE HERE, which represents over 10,000 casino
workers in California, reports that workers with collective
bargaining agreements earned $7,558 (41%) more in combined
wages and health insurance benefits than the industry average
in California.\22\
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\22\The Emerging Standard: An Analysis of Job Quality in
California's Tribal Gaming Industry, UNITE HERE (October 2013).
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Where unions have organized at casinos in
California, workers formerly trapped in poverty level jobs now
have a foothold to get into the middle class as their wages
have increased, their health care costs have declined, and the
number of families requiring government assistance for health
care has decreased significantly.
Tribal casinos are not obligated to obey state minimum wage
laws, which have a negative impact on casino workers in states
where the minimum wage is higher than the federal minimum wage.
Unions help close that gap.
THE CONGRESSIONAL BUDGET OFFICE (CBO) DETERMINED THAT ENACTMENT OF H.R.
511 WOULD HAVE AN ADVERSE ECONOMIC IMPACT ON WORKERS AT TRIBAL
ENTERPRISES
The Congressional Budget Office found that ``[B]y excluding
tribal enterprises located on tribal land from the definition
of employer for purposes of the National Labor Relations Act,
the bill would eliminate the right of employees of such
enterprises to file a claim, individually or through a union,
regarding certain labor practices. Currently, employees may
file a claim against tribal employers over which the NLRB
asserts jurisdiction alleging unfair labor practices under the
act that prohibit or interfere with collective activities to
improve wages and working conditions. By eliminating the right
of employees to file such claims with the NLRB, the bill would
impose a `private-sector mandate''' on such workers under the
Unfunded Mandates Reform Act.
CBO found employees of tribal enterprises are burdened with
economic costs under H.R. 511, which include ``the value of
forgone monetary awards resulting from claims that would have
been filed with the NLRB in the absence of the bill'' including
a ``reinstatement of discharged employees and back pay for the
period of unemployment.''\23\ CBO noted that by eliminating the
right of employees ``to form a union and bargain collectively''
there would be a broader adverse impact, but CBO did not
consider this broader impact to be part of the direct cost of
the mandate.
---------------------------------------------------------------------------
\23\Congressional Budget Office Cost Estimate for the Tribal Labor
Sovereignty Act of 2015 (H.R. 511), August 24, 2015, https://
www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/
hr511.pdf.
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TRIBAL LABOR RELATIONS ORDINANCES ARE NOT AN ADEQUATE ALTERNATIVE TO
NLRA JURISDICTION ABSENT MINIMUM STANDARDS
Proponents of H.R. 511 point to the adoption of Tribal
Labor Relations Ordinances (TLRO) by some tribes as evidence
that there is an adequate alternative for the protections
offered by NLRA that will preserve tribal sovereignty.
Some tribes have been required to adopt TLROs, such as
those in California, where the state has required TLROs as a
condition of state-tribal gaming compacts under the Indian
Gaming Regulatory Act. Tribes in other states have negotiated
TLROs with unions who had first won recognition under the NLRA.
However, other tribes in other states have chosen not to adopt
a TLRO at all, because there was no requirement under a state
compact. Each tribe enacts its own labor-management relations
laws, if at all, without transparency or political
accountability to non-tribal members employed by its commercial
businesses. Moreover, there is no uniform set of rights and
responsibilities for employers and workers that have to be
included in tribal labor ordinances. Many TLRO's provide
inadequate protections, and the field is marked by widespread
inconsistency in the protection of rights, for example:
The Fair Employment Practices Code of the Little
River Band of Ottowa Indians in Michigan requires labor
organizations to apply for and obtain a license from the tribe
before organizing; it precludes bargaining over layoffs or
recall of employees; and gives the Tribal Court exclusive
authority over disputes involving the duty to bargain in good
faith, which are not subject to appeal. These and other
requirements severely limit freedom of association.
The United Auto Workers (UAW) and three other
unions reached an agreement with the Mashantucket Pequot Tribe
at the Foxwoods Casino regarding the terms of a TLRO, which
governs their collective bargaining relationship. However, this
mutually agreeable TLRO would not have been established, except
for the fact that the UAW had petitioned for and won an NLRB
election to represent workers at the casino. If H.R. 511 were
enacted, and the Tribe then chose to reinstate restrictive
labor laws that it had previously adopted, there would be no
legal or political recourse for the workers--the overwhelming
majority of whom do not belong to the Mashantucket Pequot
Tribe.
Tribes must adopt a TLRO under their compact
between the State of California and tribal casinos with more
than 250 employees. While there are a number of similarities
between the California TLRO and the NLRA, the tribes can
restrict workers' choices when voting which union they want to
select; long established rights to display union buttons while
at work are prohibited; and unfair labor practices are
adjudicated through a standing panel of 10 arbitrators rather
than a labor relations agency. On the other hand, some compacts
include neutrality agreements which allow for card check
recognition instead of secret-ballot elections, and waive
sovereign immunity to allow unions to seek enforcement of
arbitration decisions in state court. However, if a tribe fails
to adopt an acceptable TLRO, only the State of California has
enforcement rights.
There is no federal requirement that TLROs must be at least
as effective as the rights and remedies provided under federal
labor law. If TLROs are to serve as a nationwide alternative to
the NLRA, there will need to be statutory minimum standards and
each TLRO would need to be assessed by a competent authority to
ensure that workers' rights are substantially the same as those
under the NLRA, even if they are not identical in all respects.
THE U.S. REQUIRES ITS TRADING PARTNERS TO IMPLEMENT INTERNATIONALLY
RECOGNIZED LABOR STANDARDS, BUT H.R. 511 EXEMPTS U.S. WORKERS WHEN
EMPLOYED BY INDIAN TRIBE
This bill advances a double standard: it deprives workers
of the right to organize and bargain collectively at commercial
enterprises operated by Indian tribes, while the U.S.
government insists that our international trading partners
abide by these same core rights as a way to create a level
playing field for U.S. workers. As a member of the
International Labor Organization (ILO), the United States is
obligated to respect and promote the rights outlined in the ILO
Declaration on Fundamental Principles and Rights at Work,
including:
Freedom of association and the effective
recognition of the right to collective bargaining;
Elimination of all forms of forced or
compulsory labor;
Effective abolition of child labor; and
Elimination of discrimination in respect of
employment and occupation.
When negotiating with potential trading partners, Democrats
and Republicans alike have insisted that other fully-sovereign
nations adopt laws that would implement the core ILO standards.
The U.S. Congress has ratified four free trade agreements--with
Peru, Panama, Colombia and the Republic of Korea--which
includes these rights and provides for dispute resolution for
violations. Yet within our own borders, H.R. 511 would strip
hundreds of thousands of the right to freedom of association
and the right to collective bargaining at Indian tribal
enterprises.
In short, H.R. 511 ``repudiate[s] fundamental human rights
that belong to every worker in every nation.''\24\
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\24\Legislative Alert from the AFL CIO, July 21, 2015, regarding
the Tribal Labor Sovereignty Act (H.R. 511).
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THE TRIBAL LABOR SOVEREIGNTY ACT OF 2015 (H.R. 511) WILL ADVERSELY
AFFECT THE ECONOMY
Committee Democrats have advanced policies to increase
opportunity and reduce income inequality. One of the most
effective tools to reduce income inequality is the right to
organize and collectively bargain for better wages and working
conditions. By providing workers with bargaining power, workers
can reconnect the historical linkage between productivity and
wage growth.
Weakening collective bargaining rights for workers employed
at tribal enterprises would exacerbate the well documented pay-
productivity gap that has persisted for the past 40 years.
Between 1948 and 1973, productivity increased 96.7% while wages
for the typical worker increased 91.3% in inflation adjusted
terms. However, between 1973 and 2013, productivity increased
74.4% while compensation for the typical worker only increased
9.2%.\25\ The broken link between productivity and pay is one
reason for persistent wage stagnation in our economy.
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\25\The Erosion of Collective Bargaining Has Widened the Gap
Between Productivity and Pay, David Cooper and Lawrence Mishel,
Economic Policy Institute (January 6, 2015). http//www.epi.org/
publication/collective-bargainings-erosion-expanded-the-productivity-
pay-gap/.
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Workers with collective bargaining agreements have better
wages, more access to benefits, and safer working conditions.
For example, 95% of employees have access to employer-provided
health care versus 64% of non-union workplaces. Additionally,
94% of unionized workers last year have access to retirement
benefits through employers, compared to 64% at nonunion
workplaces.\26\ These trends hold true in workplaces across the
country, but are especially pertinent in the casino and gaming
industry, which H.R. 511 would overwhelmingly affect.
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\26\Employee Benefits in the United States, New Release, Bureau of
Labor Statistics, July 24, 2015.
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PREVIOUS HOUSE CONSIDERATION OF LEGISLATION TO BLOCK NLRB JURISDICTION
OVER TRIBAL ENTERPRISES
Floor amendments were offered to both the Fiscal Year 2005
and the 2006 House Labor, HHS Appropriations Acts which would
have blocked the NLRB from enforcing the San Manuel decision.
These amendments, which were offered by Representative J.D.
Hayworth, were twice rejected on roll call votes: 225 to 187 on
September 9, 2004, and 256 to 146 on June 24, 2005.\27\
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\27\Congressional Record, September 9, 2004, pp. H.6951-6952 and
June 24, 2005, pp. H.5153.
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AMENDMENTS
No Democratic amendments were offered at the July 22, 2015
markup.
H.R. 511 IS UNNECESSARY BECAUSE THE NATIONAL LABOR RELATIONS BOARD'S
CURRENT APPROACH BALANCES TRIBAL SOVEREIGNTY AND WORKERS' RIGHTS
This legislation is not needed, because the NLRB's case-by-
case approach balances two competing principles--protection of
workers' rights and the preservation of tribal sovereignty. The
bill's all-or-nothing approach is too sweeping, and there is no
principled basis for excluding hundreds of thousands of workers
from coverage under labor laws just because they happen to work
in a commercial enterprise on tribal lands.
This bill cloaks an anti-union agenda in the respectable
garb of tribal sovereignty. It is another attempt in the
Majority's quest to dismantle labor unions and strip workers of
their ability to bargain for better pay and working conditions.
We urge the full House of Representatives to reject this
legislation.
Robert C. ``Bobby'' Scott, Ranking
Member.
Hakeem S. Jeffries.
Alma S. Adams.
Mark DeSaulnier.
Joe Courtney.
Katherine M. Clark.
Mark Pocan.
Gregorio Kilili Camacho Sablan.
Ruben Hinojosa.
[all]