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Update: Tribal Employers Will Continue to be Subject to the National Labor Relations Act

November 27, 2018
American Indian Law Advisory

Hands holding the National Labor Relations Act bookWhen the Tribal Labor Sovereignty Act (TLSA) passed the House of Representatives on January 10, 2018, Congress gave hope to Indian tribes seeking to be exempt from the National Labor Relations Act (NLRA). The TLSA would exclude "any Indian tribe, or any enterprise or institution owned and operated by an Indian tribe and located on its Indian land" from the definition of "Employer" under the NLRA. However, on April 16, 2018, efforts made by TLSA advocates were thwarted when a Senate motion to concur with the House failed by a 55-41 vote. Since April, no similar motion has been made and no further efforts to adopt the TLSA have been attempted.

Ten days after the Senate's motion to concur in the TLSA amendment failed, the 9th Circuit Court filed its decision for Pauma v. National Labor Relations Board, 888 F.3d 1066 (9th Cir. 2018). The 9th Circuit Court joined the 6th Circuit and the D.C. Circuit courts in ruling that the NLRA applies to tribal employers. In Pauma, the 9th Circuit had to resolve whether the National Labor Relations Board (NLRB) correctly determined that a casino, owned and operated by the Pauma Band of Mission Indians, committed unfair labor practices when it tried to stop union literature distribution in guest areas. In upholding the NLRB's decision, the 9th Circuit deferred to the NLRB's interpretation of the NLRA on the grounds that it was a reasonable interpretation of the NLRA and also concluded that the Board's reasoning was not trumped by federal Indian law.

Pauma is significant because it both solidifies the NLRB's position on this issue and it fails to create disagreement among Federal circuit courts, as is typically required for the Supreme Court to weigh-in on an issue. This case clearly establishes the importance of the passage of TLSA for tribes seeking to be excepted from the NLRA's requirements and underscores the disappointing nature of the Senate's failure to adopt the TLSA. Thus, since it appears unlikely that the Supreme Court will consider a similar case in the near future, it is up to Congress to address the NLRA's ambiguity through legislation.

Given these recent events, the NLRA currently still applies to Indian tribes. Therefore, tribal employers should consult with their legal counsel to determine their positions on unionization, to train supervisors to ensure compliance with the law should an organizing campaign arise and to develop legal strategy for responding to union organization.

For questions regarding the status of the TLSA or the NLRA's applicability to Indian tribes, contact any member of Varnum's Labor and Employment Team.

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