Organizing Indian Country
by Dave Palermo; Andy Holtmann
Organizing Indian Country
In the wake of San Manuel court ruling, tribes aregearing up for a nationwide war with casino union
Indian tribes are preparing for what they anticipate will be a major effort by the nation’s largest casino and hotel workers union to organize hundreds of thousands of employees at more than 400 tribal government gaming enterprises.
“They are targeting tribal governments and tribal [business] enterprises,” attorney Kevin J. Allis said of organizers with Unite Here, an international union that claims to represent 450,000 hotel, restaurant, casino and garment workers.
“It matters little if you employ thousands of people or less than 100,” Allis told tribal leaders at a recent National Indian Gaming Association conference in Phoenix, Ariz. “They are looking at you.”
Emboldened by a February ruling by a U.S. Court of Appeals that Indian tribes are subject to federal labor law, Unite Here is expected to step up efforts to organize tribal government casinos that, according to the Indian gaming association, employ more than 236,000 workers. That’s more than twice the 90,000 gaming industry employees now carrying Unite Here membership cards, the majority of whom work in Las Vegas and Atlantic City hotel-casinos.
The initial battleground for the hearts and minds of the service industry workers is California, home to the largest segment of the tribal casino industry. Nearly 60 tribal government casinos in the Golden State employ more than 57,000 workers and generate in excess of $7 billion a year in gross gaming revenue.
The ruling in San Manuel Band of Mission Indians vs. the National Labor Relations Board “creates the opportunity for a major clash, for disputes and unrest and picketing and striking,” Jack Gribbon, political director for Unite Here in California, told the Associated Press within days of the court decision.
“I think it’s going to have an immediate effect,” Connecticut State Sen. Edith Prague (D-Columbia) said of the landmark ruling. Prague’s district includes the Foxwoods and Mohegan Sun tribal casinos. “Unions will start getting in there,” she said.
Congress historically has allowed tribes the authority to enforce their own labor laws separate from the National Labor Relations Act, a policy upheld by the 10th U.S. District Court of Appeals in a 2002 case involving San Juan Pueblo in New Mexico.
But the U.S. Court of Appeals in Washington D.C. disagreed in the case of the San Manuel Indians of San Bernardino, Calif., ruling for the first time that tribes are covered by a National Labor Relations Act that bars unfair labor practices and gives workers the right to organize and bargain with employers. San Manuel had appealed a 2004 National Labor Relations Board ruling in an unfair labor practice claim by Unite Here, which was attempting to organize workers at the tribe’s casino.
Tribal leaders are upset that the appeals court and labor relations board gave little weight to the principle of Indian sovereignty, characterizing tribal casinos as for-profit, commercial ventures rather than government enterprises. Tribes view the decision as the continuation of a growing trend by Congress and federal courts to disregard tribal sovereignty and self-governance.
“This decision will not force labor agreements on Indian tribes,” San Manuel attorney Jerome R. Levine said. “That is not the case. It doesn’t mean, however, that [the ruling] has no implications for tribal sovereignty or a tribe’s ability to govern itself.”
Levine’s assurances aside, the immediate concern among tribal leaders is that Unite Here and other labor organizations will use the decision to pressure tribal governments into unwanted collective bargaining agreements. A few tribal casinos in California and elsewhere are unionized, including San Manuel Indian Bingo & Casino, but most workers at Indian casinos are nonunion. Unions have been trying to make inroads with the growing workforce but say they’ve had trouble without the protection of the National Labor Relations Act.
“Here Unite has made it clear one of its targeted industries will be tribal gaming,” said Joseph A. Turzi, a labor lawyer and partner in DLA Piper of Washington, D.C. The San Manuel ruling, he said, “led to renewed interest in organizing tribal gaming operations by Unite Here, which promptly launched its Tribal Gaming Organizing Project and began recruiting Native Americans to assist with the organizing of tribal casinos.”
Unite Here’s primary targets are not only the 57 tribal casinos in California, but Connecticut casinos operated by the Mashantucket Pequots and Mohegan tribes which together have more than 20,000 workers.
Meanwhile, there also have been attempts by Teamsters Local 375 to organize workers at the Seneca Indian Nation’s casino in Niagara Falls, N.Y. Frank C. DeRiso, president of Local 1, United Food and Commercial Workers, told the Buffalo News the San Manuel ruling was “a win for all employees working for Indian tribes.”
Tribes ‘stuck’ with ruling
San Manuel is asking the appeals court for a rehearing. But the tribe is not expected to appeal the matter to the U.S. Supreme Court because it fears the conservative makeup of the court and the current political climate will lead to an unfavorable decision.
That leaves the nation’s 226 federally recognized Indian tribes operating casinos with the task of developing a strategy for dealing with organized labor. “That’s where the focus should be,” Allis said. “The ruling has been made. They [the courts] are not going to change that decision. We’re stuck with it.”
Tribal leaders are meeting with labor lawyers and consultants. And the National Congress of American Indians, Native American Rights Fund and National Indian Gaming Association have formed a work group to draft a model tribal labor ordinance establishing legal guidelines in the event a tribe is faced with efforts to organize workers.
“These [policies and ordinances] need to be in place before [unions] start knocking on the door,” Allis said. “Once they are at the door your hands are tied in terms of things you can do to restrict their ability to form a union.”
Tribal pay on the upswing
WageWatch survey indicates 7 percent growth in 2006
Salaries for management and professional jobs in the tribal government gaming industry grew 7 percent last year according to the 2006 “Indian Gaming Compen-sation Survey” by WageWatch Inc., a Scottsdale, Ariz.-based online survey company.
Hourly job wages in the industry grew by only 2.5 percent, according to the nationwide survey of 27 casinos and associated hotels.
“To some people it may be surprising to see a 7 percent jump in salaried compensation, but on the other hand, our clients are telling us that the labor shortage is here and they are finding that it takes more money for key personnel to be recruited and to ensure they stay,” WageWatch President and COO Margaret Dyekman said.
The analysis of 45 hourly jobs and 38 salaried jobs compared the median rates from 2005 survey data to 2006 survey data. Industry wages and salaries have risen about 3.5 percent annually since 2002, but over the past two years the average has risen to almost 4 percent as the labor shortage becomes more acute.
Hourly wages have climbed only 2.5 percent, Dyekman said, but the figure may be misleading.
“Many casino jobs for which workers are paid hourly also include compensation in the form of gratuities, so flatter raises to hourly rates are not that unexpected,” she said. “If business is good, hourly workers receiving tips should still be seeing growth in their overall compensation.”
The WageWatch survey covers 22,000 employees nationwide. Jobs such as director of security, training manager, casino pit manager, special events coordinator and cage manager are paid by salary. Jobs such as slot technician, card room dealer, house keeper, waiter/waitress, security guard and bingo paymaster are considered hourly.
Drafting a model labor ordinance and educating human resource managers about federal labor laws and union organizing tactics is crucial, Allis said. Tribes must understand employer/employee rights, elements that constitute unfair labor practices and appropriate supervisory conduct in the midst of a union campaign to organize workers.
Union rules: dos and dont’s
Tips on how employers should prepare for dealing with organized labor movements
Employees have the right to form, join and support labor organizations. They also have the right to collectively bargain for wages, benefits and working conditions. They also have the right to engage in protected concerted activities, with or without a union, to improve wages and working conditions.
Any union, employer or individual may file for an election to form a collective bargaining group. At least 30 percent of the group must sign petition for election. A majority of the group must vote for union representation.
Unions may be formed through a secret ballot election, a card check system or through the acquisition of a property by a new employer.
Employers must bargain with unions in good faith over wages, benefits and working conditions.
Employers cannot threaten employee with loss of job or lower wages or benefits if the person votes for or supports a union. Employers cannot grant benefit or wage increases to discourage support for a union. Employers cannot question an employee about union sympathies or activities.
Employers cannot favor one union over another. Employers cannot discriminate against a union through propaganda or disciplinary actions.
Employees are not paid or granted benefits during a strike. Only through during an “economic strike” intended to financially harm a company can an employee be permanently replaced.
If union organizing activities begin employers:
Must not look at lists or cards with employee names or enter into discussions with union representatives;
Must instruct supervisors not to make promises or threaten employees;
Must not spy on or question employees about union activities;
Are allowed to give views on union organization and can express opinions on the impact of unionization on employee relations, wages and benefits; and
Are allowed to enforce “no solicitation” policy and work rules regarding use of company time.
But Turzi believes the impact of the San Manuel ruling has little to do with the National Labor Relations Act or the role of secret ballot elections in forming a collective bargaining group. What is significant, he said, is the ruling further diminishes tribal sovereignty and leaves Indian governments more vulnerable to union “corporate campaigns” heretofore designed to pressure private companies and public corporations into accepting union demands.
Unions have long contended the election process required under existing labor law favors the employer. NLRA elections have for all intent and purposes become irrelevant. Organized labor has, in fact, attempted to get Congress to amend federal laws to allow it to organize workers by having them sign enrollment cards.
“Unions, particularly Unite Here, are hostile to elections under the NLRA because they believe employers abuse the process to the detriment of unions and employees,” Turzi said. “Thus, the ability to organize tribal casinos under the NLRA election process is of marginal relevance to unions.”
Union corporate campaign tactics have proven more effective in organizing workers. The tactics include regulatory and legal action; interfering with efforts to acquire financing or raise capital; legislation and political campaigns; boycotts; organizing support from communities and local governments; and damaging an employer’s image or market.
Many of these hard-line tactics have been used in union efforts to negotiate commercial casino operating companies. They also have been used in the ongoing Unite Here campaign to organize casino workers employed by the Agua Caliente Band of Cahuilla Indians of Palm Springs, Calif.
Sovereignty and workers rights
The San Manuel ruling is characterized by legal analysts as the latest example of federal employment law being applied to tribal governments, resulting in an erosion of tribal sovereignty. A number of federal employment laws have been recently extended to tribal enterprises, Turzi said, including the Occupational Safety and Health Act, Employee Retirement Income Security Act, Fair Labor Standards Act and Americans with Disabilities Act. There also have been recent legislative attempts to eliminate the tribal government exemption in Title VII of the Civil Rights Act.
John Wilhelm, president of the hospitality industry division of Unite Here, said his labor organization supports tribal sovereignty and self-governance. He credits Unite Here with helping more than 10 California tribes obtain new and renegotiated tribal-state agreements, or compacts, enabling them to operate government casinos.
Unite Here is opposed to congressional attempts to impose federal and state employment laws on tribal lands, Wilhelm said. Instead, he suggests worker rights should be a part of tribal-state compact negotiations.
“Quite a number of tribes in California have agreed to enforceable workers rights within a compact negotiated with the state of California,” Gribbon said. It is up to the state, he said, to negotiate worker rights with the tribe as equal sovereigns on a government-to-government basis.
“A tribal government exercises its sovereign rights to negotiate on behalf of citizens members of the tribe,” Gribbon said. “The state has the right to advocate for its constituents. And in my view, the most vulnerable of its constituents are the workers who are the engine behind this enormously lucrative industry. Most of these are not members of the tribes. So it seems to me that the state has the same right to advocate for its most vulnerable constituents as the tribes have the right to advocate for their constituents.”
Most tribal governments are opposed to expanding the scope of tribal-state compact negotiations, which according to the Indian Gaming Regulatory Act of 1988 are to encompass only the scope and regulation of gaming on Indian lands. Tribal-state compact negotiations have included a number of issues not intended under IGRA, most notably revenue sharing.
Tribal governments in California and elsewhere are careful not to characterize themselves as being anti-labor. Trade unions built most of the tribal casinos and hotels. Indeed, even San Manuel, which is on the forefront of the war with the NLRB, has a collective bargaining agreement with the Communication Workers of America.
A handful of other California tribes, including the Viejas Band of Kumeyaay Indians of Alpine, are also represented either by CWA or Unite Here.
“The labor agreements that have been in place have worked very well for both management and team members,” Robert Scheid, Viejas’ director of public relations, said of the tribe’s contract with CWA. “Team members feel they have representation and a unified voice. Management feels that they have union officials who have been very open with their dialogue and very respectful. We’ve had a very positive working relationship. We’ve been very fortunate.”
Unite Here aligned with the five member tribes of the California Tribal Business Alliance which in 2004 entered into new and renegotiated tribal-state compacts that, among other things, erased the state-imposed cap of 2,000 slot machines per tribe. Unite Here takes partial credit for getting the new compacts ratified by two-thirds of the state Senate and Assembly.
The tribal business alliance views its partnership with Unite Here much the same way Nevada’s commercial casino industry parlayed its relationship with the union into increased political clout on Capitol Hill. As Nevada’s casino industry faced challenges from Congress, so do tribes in California face the prospects of expanded commercial gambling, increased state regula-tions and other threats to tribal sovereignty.
“It was a business decision,” said Allison Harvey, executive director of the tribal alliance. “They viewed it as good business for a variety of reasons. Those include having a strong partner and ally in protecting tribal gaming. We think that there are several clouds on the horizon here, and you can’t just go it alone.
“If you look at the evolution of Las Vegas, the casino operators needed a partnership with their employees. Las Vegas became largely unionized and really moved forward. They had the political structure to protect and promote their industry. Tribes in California may feel strong because they have a monopoly, but that may well not last.
“In a broad, political sense, unions bring extra support. Tribes are what they are and they’ve done a good job in becoming politically active, but they can’t go it alone forever.
“Right now we’ve got a proposal to privatize the lottery,” Harvey said. “If that happens you’re going to be a huge private investment industry looking to bring video lottery and other casino style gaming to the lottery. That’s the kind of thing you could view as a big cloud on the horizon. We need to be as strong as we can be to deal with it.”
Two of the five tribes had no existing compact when the 2004 agreements were reached with Gov. Arnold Schwarzenegger. They negotiated tribal labor relations ordinances that require that Unite Here waive its protections by the National Labor Relations Board. The union also agreed not to engage in strikes, picketing, boycotts and other civil disobedience.
Although Unite Here represents workers at a few California tribal casinos, a statewide alliance of the labor organization and most California tribal governments seems unlikely. The union in the late 1990s waged an unsuccessful legal battle against California ballot initiatives to permit tribal government gaming, which since passage of Proposition 1A in 1999 has grown into a $7 billion industry.
Organized labor’s opposition to tribal gaming in the Golden State was not quelled until tribes signed onto a joint Tribal Labor Relations Ordinance permitting collective bargaining if workers in a secret ballot election agreed to union representation. Here, which in 2005 joined with Needle trades, Industrial and Textile Employees to form Unite Here, now believes the ordinance is too restrictive.
Unite Here has been lobbying the state Legislature to reject five pending tribal-state gaming compacts until tribal labor ordinances are amended to permit organization of workers through a card check system rather than a secret election. The compacts, if ratified, would increase California’s inventory of slot machines from 60,000 to more than 80,000 devices and generate some $400 million a year in revenue to the state. Unite Here has succeeded in getting card check legislation for tribal casinos in New York.
In the midst of the furor over the San Manuel ruling, tribal leaders are pressing Congress for an exemption from the National Labor Relations Act.
National Congress of American Indians President Joe Garcia told the House Committee on Education and the Workforce’s Subcommittee on Employer-Employee Relations last year that tribal governments should not be treated as private employers under the NLRA.
“Many Indian tribes have exercised their sovereign authority to welcome labor unions and encourage union organization,” Garcia said. “But that is a choice for Indian tribal governments—not federal bureaucrats or labor leaders—to make in a way that protects the functions of tribal government and the tribal members living on reservations.”
Garcia affirmed that Indian tribes support strong relationships with their employees and urged a close working partnership between tribes, labor unions and Congress to work on building better lives for tribal members and tribal employees.
“In many ways Indian America is an emerging market, often with vulnerable populations and delicate economies and labor union policy on tribal lands is an important aspect of economic regulation that should be left to tribal governments as a matter of self-determination and self-sufficiency in the same way that states and local governments are allowed to develop their own policies,” Garcia said. “This comes back to the obligation Congress has with tribes to continue to recognize their sovereign status.”