Tribes cannot avoid national labor board authority, court rules

The 9th U.S. Circuit Court of Appeals has reaffirmed that Native American casinos can't skirt the authority of the National Labor Relations Act.

On Thursday, a three-member panel affirmed a petition for enforcement brought by the National Labor Relations Board against the Casino Pauma -- a gaming facility owned by the Pauma Band of Mission Indians staffed largely by non-tribal members.

The panel affirmed a decision by an administrative law judge in 2014 that found the casino committed unfair labor practices by trying to stop workers from distributing union literature near its front entrance. Casino Pauma v. NLRB, 2018 DJDAR 3698.

The 9th Circuit's ruling is a significant victory for California employees, said Kristin L. Martin, who argued the matter on behalf of the NLRB.

"We have a lot of tribal casinos here in California, and the California tribes tend to be small," Martin said.

"The overwhelming majority of people who work at those casinos are non-members who can't participate in tribal governance, so the ability to be in a union gives them protection for working conditions," she added.

According to the opinion, the Casino Pauma employs 462 people, five of whom are members of the Pauma Band.

In its petition for review, attorneys for the casino argued that the NLRB had misinterpreted the scope of the NLRA and principles of federal Indian law, noting that as a tribally-owned business it was not subject to the federal labor statute.

Judge Marsha S. Berzon, who wrote the panel's opinion denying the Casino Pauma petition, noted the board's controlling interpretation of the NLRA's application to Native American groups is based on a 2004 case.

In the 15 years since that ruling, two other circuit courts have addressed challenges to the NLRA.

Both courts upheld the board's assertion that it has jurisdiction over employers at tribe-owned casinos.

Berzon also pointed out that none of the exceptions outlined by the 1985 9th Circuit case, Donovan v. Coeur d'Alene Tribal Farm, apply to the Pauama Band, which doesn't have a treaty with the federal government, negating the argument that federal Indian law precludes the application of the NLRA.

"In this regard, Casino Pauma is much like the tribe-owned farm in Coeur d'Alene -- a business that 'employs non-Indians as well as Indians,'" Berzon wrote, adding that the casino's operations aren't essential to Native American self-government.

The 9th Circuit's decision doesn't make any significant changes in how the NLRB has dealt with tribal gaming facilities, according to Dorothy Alther, an attorney with California Indian Legal Services who wrote an amicus brief on behalf of Casino Pauma.

She said the board's constraints have been a vexing issue for the owners of tribal casinos because some types of union activity disrupt the day-to-day operations at their facilities.

Alther said there has recently been movement to adopt legislation that would amend the Tribal Labor Sovereignty Act with a clause specifically prohibiting the application of the NLRA to tribal institutions. "I'm not sure, given the current political climate, if it's something that might actually make it through Congress," she said.

Legal counsel for the Casino Pauma did not respond to a request for comment.