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115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-324
======================================================================
TRIBAL LABOR SOVEREIGNTY ACT OF 2017
_______
September 25, 2017.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Ms. Foxx, 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. 986]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 986) 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
2017''.
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 Indian or
held by any Indian tribe or Indian 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. 986, the Tribal Labor Sovereignty Act of 2017,
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 on Proposals to Strengthen the NLRA
On July 25, 2012, the Subcommittee on Health, Employment,
Labor, and Pensions (HELP) held a hearing entitled ``Examining
Proposals to Strengthen the National Labor Relations Act,'' to
review 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 Rewarding Achievement and Incentivizing
Successful Employees 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.
---------------------------------------------------------------------------
\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
Introduction of H.R. 511, Tribal Labor Sovereignty Act of 2015
On January 22, 2015, Rep. Todd Rokita (R-IN) introduced
H.R. 511, 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 (San Manuel),\3\ the legislation provided that 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). Substantively identical
legislation was also introduced by Rep. Kristi Noem (R-SD) in the 112th
and 113th Congresses.
\3\341 NLRB No. 138 (2004).
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Subcommittee Legislative Hearing on H.R. 511, Tribal Labor Sovereignty
Act of 2015
On June 16, 2015, the HELP Subcommittee 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
was 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 Passage of H.R. 511, Tribal Labor Sovereignty Act of 2015
On July 22, 2015, the Committee on Education and the
Workforce (Committee) marked up H.R. 511, the Tribal Labor
Sovereignty Act of 2015.\5\ Rep. Rokita 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,
as amended, to the House of Representatives by voice vote.
---------------------------------------------------------------------------
\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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House Passage of H.R. 511, Tribal Labor Sovereignty Act of 2015
On November 17, 2015, the House of Representatives passed
H.R. 511, the Tribal Labor Sovereignty Act of 2015, by a vote
of 249 to 177. A companion bill, S. 248, was introduced in the
Senate by Sen. Jerry Moran (R-KS) and favorably reported by the
Senate Committee on Indian Affairs. It was not taken up by the
full Senate.
115TH CONGRESS
Introduction of H.R. 986, Tribal Labor Sovereignty Act of 2017
On February 9, 2017, Rep. Rokita introduced H.R. 986, the
Tribal Labor Sovereignty Act of 2017, with nine cosponsors.\6\
As with bills introduced in prior Congresses,\7\ the
legislation provides that 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.
---------------------------------------------------------------------------
\6\H.R. 986, 115th Cong. (2017). This legislation was substantively
identical to H.R 511, introduced in the 114th Congress.
\7\341 NLRB No. 138 (2004).
---------------------------------------------------------------------------
Subcommittee Legislative Hearing on H.R. 986, Tribal Labor Sovereignty
Act of 2017
On March 29, 2017, the HELP Subcommittee held a legislative
hearing entitled ``H.R. 986, Tribal Labor Sovereignty Act of
2017.''\8\ Witnesses testified to the urgent need to prevent
the NLRB from usurping power from sovereign Indian tribes.
Witnesses at this hearing were the Honorable Brian Cladoosby,
President, National Congress of American Indians, Washington,
D.C.; the Honorable Nathaniel Brown, Delegate, 23rd Navajo
Nation Council, Navajo Nation, Window Rock, Arizona; Mr. John
Gribbon, California Political Director, UNITE HERE
International Union, AFL-CIO, San Francisco, California; and
the Honorable Robert J. Welch, Jr., Chairman, Viejas Band of
Kumeyaay Indians, Alpine, California.
---------------------------------------------------------------------------
\8\Legislative Hearing on H.R. 986, Tribal Labor Sovereignty Act of
2017: Hearing Before the Subcomm. on Health, Employment, Labor, and
Pensions of the H. Comm. on Educ. and the Workforce, 115th Cong.
(2017).
---------------------------------------------------------------------------
Committee Passage of H.R. 986, Tribal Labor Sovereignty Act of 2017
On June 29, 2017, the Committee marked up H.R. 986, the
Tribal Labor Sovereignty Act of 2017.\9\ Rep. Rokita offered an
amendment in the nature of a substitute making technical
changes to clarify the definition of ``Indian lands,'' which
was adopted by voice vote. The Committee favorably reported
H.R. 986, as amended, to the House of Representatives by a vote
of 22 to 16.
---------------------------------------------------------------------------
\9\H.R. 986, Tribal Labor Sovereignty Act of 2017: Markup Before
the H. Comm. on Educ. and the Workforce, 115th Cong. (2017).
---------------------------------------------------------------------------
Summary
H.R. 986, the Tribal Labor Sovereignty Act of 2017, will
codify the NLRB standard regarding Board jurisdiction that
existed prior to the 2004 San Manuel decision, amending the
NLRA to provide 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 NLRA, guaranteeing the right
of most private sector employees to organize and select their
own representative.\10\ In 1947, Congress passed the most
significant amendment of the NLRA, the Taft-Hartley Act,\11\
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.''\12\ The Taft-Hartley Act clarified
employees have the right to refrain from participating in union
activity,\13\ created new union unfair labor practices,\14\
codified employer free speech,\15\ and made changes to the
determination of bargaining units.\16\
---------------------------------------------------------------------------
\10\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).
\11\29 U.S.C. Sec. 141 et. seq.
\12\Archibald Cox, Some Aspects of the Labor Management Relations
Act of 1947, 61 HARV. L. REV. 1, 4 (1947).
\13\ 29 U.S.C. Sec. 157.
\14\Id. Sec. 158.
\15\Id. Sec. 158(c).
\16\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 intended to be wholly neutral.\17\
---------------------------------------------------------------------------
\17\NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973).
---------------------------------------------------------------------------
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.\18\ Conversely, most
states do not afford public-sector workers the right to
strike.\19\
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\18\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.
\19\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 HELP Subcommittee,
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.''\20\ Chairman Butler stated:
---------------------------------------------------------------------------
\20\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Rodney Butler at 5) (internal quotation marks
omitted).
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.\21\
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\21\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.\22\ The Mashantucket
Pequot Nation subsequently entered into collective bargaining
agreements with those four unions.\23\
---------------------------------------------------------------------------
\22\Id.
\23\Id.
---------------------------------------------------------------------------
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.''\24\ This included the right
to collectively bargain.\25\ 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.\26\ Unions are collectively bargaining with the
Navajo Nation and private employers on tribal land. Mr. Guest
stated:
---------------------------------------------------------------------------
\24\Id. (written testimony of Richard Guest at 6).
\25\Id. at 7.
\26\Id.
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.\27\
---------------------------------------------------------------------------
\27\Id. at 8.
Nathaniel Brown, a Navajo Nation council member, testified
before the Subcommittee in a subsequent hearing and agreed with
Mr. Guest that employees of the Navajo Nation have basic labor
rights. He stated that a ``Navajo worker's right to join a
union is protected.''
Indian tribes have also addressed labor rights through the
California tribal labor relations ordinances. In his testimony,
Mr. Guest described how in 1999 Indian tribes negotiated
tribal-state gaming compacts in California.\28\ 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.''\29\ 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.\30\ The Ordinance is similar
to the NLRA in many ways, including incorporating 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. Mr. Guest stated:
---------------------------------------------------------------------------
\28\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of Richard Guest at 8).
\29\Id.
\30\Id.
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.\31\
---------------------------------------------------------------------------
\31\Id. at 9-10.
Robert J. Welch, Jr., Chairman of the Viejas Band of
Kumeyaay Indians from San Diego County, California, discussed
in his testimony before the Subcommittee the tribal labor
ordinance the Viejas Band passed in 1999. Chairman Welch
---------------------------------------------------------------------------
stated:
On September 14, 1999, the Viejas Band passed its own
law governing labor relations: a Tribal Labor Relations
Ordinance (the ``TLRO''). The TLRO, like similar
voluntarily adopted state laws addressing labor
relations for government agencies, contains numerous
provisions that are similar to the NLRA, including
detailed procedures for representation proceedings, a
guarantee of rights to engage in concerted activity,
enumeration of unfair labor practices by Tribes and
unions, and procedures for secret ballot elections and
union decertification. The TLRO, however, also diverges
from the NLRA in matters that are unique to Tribal
government gaming, including the recognition of an
Indian hiring preference, the exclusion of certain
employee classifications from organization (such as
Tribal Gaming Commission employees), the ability for a
Tribal Gaming Commission to require a labor
organization to secure a gaming license, and the
resolution of any labor disputes through binding
arbitration before an independent Tribal Labor Panel
(rather than the NLRB). The Viejas Band amended its
TLRO in November 2016 to provide additional protections
to employees and labor organizations.
Over 70 other Tribal governments in California have
adopted their own, substantially similar, TLROs. The
TLROs have worked well for over 17 years, have been
publicly praised by California labor union
representatives speaking before the California
legislature, and would continue to be undermined by
NLRB interference if H.R. 986 were not passed.\32\
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\32\Legislative Hearing on H.R. 986, supra note 8 (written
testimony of the Hon. Robert J. Welch, Jr., at 4-5).
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.\33\ In 1832, the Supreme
Court in Worcester v. Georgia further indicated Indian tribes
did not have the authority to deal with foreign powers.\34\
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.''\35\ In 1831, in Cherokee Nation v.
Georgia, the Supreme Court noted the Cherokee Nation had ``the
character of . . . a state, as a distinct political society
separated from others, capable of managing its own affairs and
governing itself.''\36\
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\33\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.
\34\ 31 U.S. (6 Pet.) 515, 559 (1832):
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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.
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\35\21 U.S. (8 Wheat.) 543, 574 (1823).
\36\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 not limit 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
American 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.\37\
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\37\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).
---------------------------------------------------------------------------
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.\38\ As
Jefferson Keel, Lieutenant Governor for the Chickasaw Nation,
stated in his testimony to the Subcommittee, ``[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.''\39\ Brian
Cladoosby, President of the National Congress of American
Indians, raised a similar concern in his testimony before the
Subcommittee. He stated, ``We are very concerned that the right
to strike would allow outside forces--third parties with little
or no connection to the tribal community--to control tribal
government decisions.''\40\
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\38\See, e.g., 29 U.S.C. Sec. 158(d) (obligation of employer and
union to bargain collectively).
\39\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Jefferson Keel at 1) (emphasis added).
\40\Legislative Hearing on H.R. 986, supra note 8 (written
testimony of the Hon. Brian Cladoosby at 5).
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NLRB Jurisdiction over Indian Tribes
For almost 30 years, the NLRB held ``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.''\41\ However, in 2004 in San Manuel, the Board
adopted a ``new approach to considering Indian owned and
operated enterprises,''\42\ holding 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 unnecessary encroachment on tribal
sovereignty, several members of Congress have introduced
legislation to undo the precedent established under the San
Manuel decision. Most recently, Rep. Rokita 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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\41\Fort Apache Timber Co., 226 NLRB 503 (1976), overruled by San
Manuel Indian Bingo and Casino, 341 NLRB No. 138 (2004).
\42\341 NLRB 1055, 1064 (2004).
---------------------------------------------------------------------------
From 1976 to 2004, the NLRB held the location of an Indian
business was determinative with respect to the NLRB's
jurisdiction and 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.\43\ In Sac and Fox
Industries, Ltd., the Board found the NLRA applicable to off-
reservation tribal enterprises, such as logging mills.\44\
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.
---------------------------------------------------------------------------
\43\Fort Apache, 226 NLRB at 506.
\44\307 NLRB 241 (1992).
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In 2004 in San Manuel, a divided NLRB reversed course.
Relying on controversial dicta in Federal Power Commission v.
Tuscarora Indian Nation stating a ``general statute in terms
applying to all persons includes Indians and their property
interests,''\45\ 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.\46\ In deciding San Manuel, the NLRB noted the NLRA does
not expressly exclude Indian tribes.\47\ Therefore, according
to the NLRB, the issue is left to the Board's discretion. Now,
relying on San Manuel, the Board determines 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 ``the special attributes of [tribal] sovereignty are
not implicated.''\48\ 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.\49\ Additionally, the Board does 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 NLRA to
apply to Indian tribes.\50\ Then-Board Member Peter C.
Schaumber strongly dissented, stating ``rebalancing of
competing policy interests involving Indian sovereignty is a
task for Congress to undertake.''\51\ On appeal, the U.S. Court
of Appeals for the District of Columbia Circuit upheld the
NLRB's holding in San Manuel.\52\
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\45\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.
\46\341 NLRB at 1057-62.
\47\Id. at 1058. In fact, neither the text of the NLRA nor its
legislative history reference coverage of Indian tribes.
\48\Id. at 1062.
\49\Id. at 1063.
\50\Id. at 1059.
\51\Id. at 1065 (Schaumber, Member, dissenting).
\52\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, 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.\53\
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\53\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
---------------------------------------------------------------------------
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.\54\
---------------------------------------------------------------------------
\54\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].''\55\
---------------------------------------------------------------------------
\55\Examining Proposals to Strengthen the National Labor Relations
Act, supra note 1, at 8-9 (written testimony of the Hon. Robert Odawi
Porter).
---------------------------------------------------------------------------
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.''\56\ In his testimony, Richard
Guest of the Native American Rights Fund similarly argued for
equal treatment of governments, stating:
---------------------------------------------------------------------------
\56\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.\57\
---------------------------------------------------------------------------
\57\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.''\58\ 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.''\59\
---------------------------------------------------------------------------
\58\Id. (written testimony of the Hon. Jefferson Keel at 1)
(emphasis in original).
\59\Examining Proposals to Strengthen the National Labor Relations
Act, supra note 1, at 9 (written testimony of the Hon. Robert Odawi
Porter).
---------------------------------------------------------------------------
Brian Cladoosby, President of the National Congress of
American Indians, pointed out in his testimony before the
Subcommittee, ``[More than] 90,000 other units of government in
America, who employ over 21 million Americans, are not subject
to the NLRA. The Board in 2004 made tribal governments the only
governments subject to the NLRA.''\60\ Nathaniel Brown, Navajo
Nation Council Member, also argued for parity in his 2017
testimony before the Subcommittee, stating, ``[W]e are not
asking for special treatment. The United States and States have
been afforded this exemption [from the NLRA]. We simply want
parity. If they are able to self-govern and be self-determined
with regards to the NLRA, so should we.''\61\
---------------------------------------------------------------------------
\60\ Legislative Hearing on H.R. 986, supra note 8 (written
testimony of the Hon. Brian Cladoosby at 3).
\61\Id. (written statement of the Hon. Nathaniel Brown at 2).
---------------------------------------------------------------------------
Robert J. Welch, Jr., Chairman of the Viejas Band of
Kumeyaay Indians, made a similar point in his testimony,
stating:
As sovereign governments engaged in economic
activities essential to fund government services,
Tribes, such as the Viejas Band, should enjoy the same
exempt status as the United States, State governments,
and their government business. If exemption is
appropriate for state lotteries, it should be for
Tribal governments too.\62\
---------------------------------------------------------------------------
\62\Id. (written statement of the Hon. Robert J. Welch, Jr., at 3).
In 2007, in Foxwoods Resort Casino,\63\ 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.\64\ 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.\65\
---------------------------------------------------------------------------
\63\No. 34-RC-2230 (Oct. 24, 2007) (decision and direction of
election).
\64\Id. at 4.
\65\Id. at 13.
---------------------------------------------------------------------------
In 2013, in Soaring Eagle Casino and Resort (Soaring
Eagle),\66\ 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 afforded the
Saginaw exclusive use, ownership, occupancy, and self-
governance of a permanent homeland in Isabella County.\67\
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.\68\ 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.\69\
---------------------------------------------------------------------------
\66\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).
\67\Soaring Eagle Casino and Resort, 2013 WL 1646049, *4.
\68\Id. at *12.
\69\Id. at *19.
---------------------------------------------------------------------------
In contrast, on June 4, 2015, after years of litigation,
the NLRB in Chickasaw Nation unanimously declined to assert
jurisdiction.\70\ 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.\71\
---------------------------------------------------------------------------
\70\362 NLRB No. 109, 2015 WL 3526096 (2015).
\71\2015 WL 3526096, *3.
---------------------------------------------------------------------------
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, Lieutenant Governor Keel of the Chickasaw
Nation stated the following:
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.\72\
---------------------------------------------------------------------------
\72\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Jefferson Keel at 4).
On June 9, 2015, in NLRB v. Little River Band of Ottawa
Indian Tribal Government (Little River Band), 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.\73\ The
majority held although the NLRA is silent on the issues, the
statutory terms ``employer'' and ``person'' both encompass
Indian tribes.\74\ 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.\75\ Dissenting, Judge David McKeague argued
principles of tribal sovereignty should leave the band free to
regulate its own labor relations at the casino.\76\
---------------------------------------------------------------------------
\73\788 F.3d 537 (6th Cir. 2015).
\74\Id. at 543.
\75\Id. at 544-56.
\76\Id. at 556 (McKeague, J., dissenting).
---------------------------------------------------------------------------
Less than a month after the Little River Band decision,
another Sixth Circuit panel issued a decision in an appeal from
the NLRB in Soaring Eagle. The Soaring Eagle panel stated its
disagreement with the Little River Band decision. Regardless,
the panel found it was bound by the Little River Band decision
released just weeks earlier, and thus forced to rule the NLRA
had jurisdiction over the Saginaw Chippewa Indian Tribe of
Michigan, owner and operator of the Soaring Eagle Casino and
Resort.\77\ In June 2016, the Supreme Court declined to hear an
appeal of the Soaring Eagle and Little River Band
decisions.\78\ 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.''\79\
---------------------------------------------------------------------------
\77\791 F.3d 648 (6th Cir. 2015), rehearing en banc denied, 791
F.3d 648 (6th Cir. 2015), cert. denied, 136 S. Ct. 2509 (2016).
\78\136 S. Ct. 2509 (2016).
\79\Legislative Hearing on H.R. 511, supra note 4 (written
testimony of the Hon. Jefferson Keel at 4).
---------------------------------------------------------------------------
Most recently, on October 11, 2016, an NLRB Administrative
Law Judge found the Viejas Tribe was subject to the NLRA in
Viejas Band of Kumeyaay Indians.\80\ The tribe in that case has
asked the full Board to review the issue of whether they are an
employer under the NLRA.
---------------------------------------------------------------------------
\80\Case No. 21-CA-166290 (Oct. 24, 2016).
---------------------------------------------------------------------------
These cases have seen varying outcomes and the opaque
application of Indian treaty law, which creates a vague
standard. The subjective nature of the San Manuel test and its
threat to sovereignty have made this an issue of concern for
tribes across the country. Representatives of the tribal
community testified about the need for a legislative fix to
clarify tribal sovereignty. For example, Chairman Cladoosby
stated the following in testimony before the HELP Subcommittee:
Where Tribal sovereignty is undermined or threatened
in any way, we have no choice but to take a strong
stand . . . . With [the San Manuel] decision, the Board
upended 70 years of precedent and unilaterally
disregarded Tribal labor law and made Tribal
governments the only governments in the United States
subject to the NLRA. With the Tribal Labor Sovereignty
Act, Congress resolves any question about whether the
NLRA applies to Tribal governments and reaffirms
sovereign governmental rights of Indian Tribes to make
their own labor policies that govern their own
governmental employees.\81\
---------------------------------------------------------------------------
\81\Legislative Hearing, supra note 8 (oral testimony of the Hon.
Brian Cladoosby).
Additionally, Nathaniel Brown of the Navajo Nation Council
testified before the HELP Subcommittee that H.R. 986 is a
``step in the right direction toward honoring [Tribal]
sovereignty and self-determination.''\82\ At the same hearing,
Chairman Welch of the Viejas Band of Kumeyaay Indians agreed.
He stated the following:
---------------------------------------------------------------------------
\82\Id. (oral testimony of the Hon. Nathaniel Brown).
H.R. 986 is about respecting the sovereignty of
Tribes and affirming that they possess the same power
as Federal, State, and local governments to regulate
labor relations on sovereign lands . . . . Tribes
should not be treated as second class governments.
Viejas respectfully requests that Congress enact H.R.
986.\83\
---------------------------------------------------------------------------
\83\Id. (oral testimony of the Hon. Robert J. Welch, Jr.).
---------------------------------------------------------------------------
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, currently determines whether the NLRA would
interfere with tribal sovereignty or abrogate treaty rights in
a highly subjective manner, 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. H.R. 986, the Tribal Labor
Sovereignty Act of 2017, creates parity with the states and
between tribes, thus ensuring tribal sovereignty.
Section-by-Section
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 2017.''
Section 2. Amends the NLRA 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 terms ``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. 986 codifies the pre- 2004 NLRB standard 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. 986 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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House Rule XIII, the
goal of H.R. 986 is to protect tribal sovereignty and the right
to tribal self-governance.
Duplication of Federal Programs
No provision of H.R. 986 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. 986 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. 986 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 21, 2017.
Hon. Virginia Foxx,
Chairwoman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Madam Chairwoman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 986, the Tribal
Labor Sovereignty Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Anthony.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.
H.R. 986--Tribal Labor Sovereignty Act of 2017
H.R. 986 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. 986 would not significantly affect the
workload of the NLRB and thus would have no effect on the
federal budget. Because enacting the bill would not affect
direct spending or revenues, pay-as-you-go procedures do not
apply.
CBO estimates that enacting H.R. 986 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 986 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 2016, claims with the NLRB resulted in about 600
cases in which employees were reinstated and in awards of about
$53 million in back pay and other costs. Case documents show
that the NLRB has asserted jurisdiction over only a small
number of tribal enterprises since 2004 (fewer than 10). 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 ($156 million
in 2017, 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 February 16, 2017, CBO issued an estimate for S. 63, the
Tribal Labor Sovereignty Act of 2017, as ordered reported by
the Senate Committee on Indian Affairs. That bill is identical
to H.R. 986, and the estimates are the same for both bills.
The CBO staff contacts for this estimate are Christina
Hawley Anthony (for federal costs) and Amy Petz (for private-
sector mandates). 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. 986. 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 italic and existing law in which no change is
proposed is shown in roman):
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 italic 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 Indian or held by any Indian tribe or Indian
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
This bill would strip workers of their rights to organize
and collectively bargain at any enterprise owned and operated
by a recognized Indian tribe on tribal land. H.R. 986 amends
the definition of a covered ``employer'' per the National Labor
Relations Act (NLRA), which has the effect of excluding such
tribal enterprises from the jurisdiction of the NLRA. All
present Democratic members of the Committee opposed H.R. 986
during a roll call vote.
This bill arises from tension between two deeply-held
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 rights 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 balance these important
interests, H.R. 986 strips hundreds of thousands of workers--
the majority of whom are not members of tribes--of their right
to a voice in the workplace. As the International Labor
Organization (ILO) has noted with regards to this legislation,
this exclusion from the NLRA ``would give rise to
discrimination in relation to the protection of trade union
rights which would affect both indigenous and non-indigenous
workers simply on the basis of their workplace location.''\2\
---------------------------------------------------------------------------
\2\Letter from Corrine Vargha, ILO Director of International Labor
Standards Department, to Richard Trumka, AFL-CIO President.
---------------------------------------------------------------------------
The NLRA's protection of employees' rights to join unions
is especially critical for this group of predominantly lower-
wage workers. According to a 2013 report by UNITE HERE, the
average California tribal casino worker without a union makes
$10.02 per hour or $20,841 annually. At this level, a family of
four with one breadwinner would be living at 88 percent of the
federal poverty level. In contrast, workers with collective-
bargaining agreements earned $7,558 (41 percent) more in
combined wages and health insurance benefits than the industry
average in California.\3\
---------------------------------------------------------------------------
\3\The Emerging Standard: An Analysis of Job Quality in
California's Tribal Gaming Industry, UNITE HERE (October 2013).
---------------------------------------------------------------------------
Wrapped in the garb of respect for tribal sovereignty, this
bill is another attempt to dismantle labor unions and strip
workers of their ability to bargain for better pay and working
conditions.
Committee Action on H.R. 986
Committee Democrats did not offer amendments to H.R. 986
during the June 29, 2017 markup. The bill was approved on a
roll call vote 22-16, with all Democrats present opposing.
Previous House Floor Consideration of Legislation To Block the
Applicability of the NLRA to Employees of Commercial Tribal Enterprises
In the 114th Congress, the House Committee on Education and
the Workforce reported the same bill (H.R. 511) on September
10, 2015. The House passed the bill by a 249-177 vote on
November 17, 2015. Prior to the vote, the Obama administration
issued a Statement of Administration Policy opposing the bill,
but stated that the administration could support a compromise
that would ``exempt[] tribes from the jurisdiction of the
[NLRB] only if the tribes adopt labor standards and procedures
. . . reasonably equivalent to those in the National Labor
Relations Act.''\4\ The Majority has not expressed interest in
exploring this option.
---------------------------------------------------------------------------
\4\Barack Obama, Statement of Administration Policy: H.R. 511--
Tribal Labor Sovereignty Act of 2015 (Nov. 17, 2015) https://
obamawhitehouse.archives.gov/sites/default/files/omb/legislative/sap/
114/saphr511h_20151117.pdf.
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Floor amendments were offered to both the Fiscal Year 2005
and the 2006 House Labor-HHS Appropriations Acts that would
have blocked the NLRB from enforcing the San Manuel Indian
Bingo and Casino decision. These amendments, 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.\5\
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\5\Congressional Record, September 9, 2004, pp. H.6951-6952 and
June 24, 2005, pp. H.5153.
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The NLRA's Application to Tribal Enterprises Is Settled Law and Rooted
in Longstanding Precedent
The NLRA is a statute of general applicability, and does
not exclude tribal enterprises from its jurisdiction.\6\ As
observed by the Supreme Court in 1960, ``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.''\7\ To clarify this principle, courts apply the
three-prong test established in the Ninth Circuit's 1985
decision Donovan v. Coeur d'Alene Tribal Farm.\8\ This test
holds that a federal law of general applicability does not
apply to a tribe if: (1) it touches upon a tribe's intramural
governance; (2) it abrogates rights guaranteed by an Indian
treaty; or, (3) Congress indicates that a law should not apply
to Indian tribes.\9\
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\6\The NLRA defines the term ``employer'' to include ``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 person subject to the Railway Labor Act. .
.''
\7\FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960).
\8\751 F.2d 1113 (9th Cir. 1985).
\9\Id. at 1116.
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In 2004, during the Bush Administration, the National Labor
Relations Board (NLRB) in San Manuel Indian Bingo and Casino
applied this three-prong test in deciding whether to assert
jurisdiction over a tribal casino on tribal lands.\10\ In doing
so, the NLRB sought to harmonize its interpretation of the NLRA
with the Supreme Court's presumption that laws of general
applicability apply to tribes.\11\ Noting the three exceptions
articulated in Coeur d'Alene, the NLRB went a step further and
adopted a fourth exception where there are policy reasons not
to assert jurisdiction in order ``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.''\12\
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\10\341 NLRB 1055 (2004), enforced 475 F.3d 1306 (D.C. Cir. 2007).
\11\Id. at 1059 (citing Tuscarora, 362 U.S. at 116).
\12\San Manuel, 341 NLRB at 1062.
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Applying this test, the NLRB found that it would generally
apply the NLRA to tribal-owned businesses except when it meets
any of the above exceptions. For example, the NLRB declined to
exercise jurisdiction over tribal enterprises including a
health clinic that served primarily tribal members in Alaska
based on the fourth exception.\13\ In another example, the
Board declined jurisdiction over an Oklahoma casino run by the
Chickasaw tribe that was party to an 1830 treaty which exempts
the tribe from nearly all federal laws.\14\ The case law
distinguishes between proprietary interests, such as the
operation of a casino, where the Coeur d'Alene tests would
apply, and sovereign interests involving tribal self-
governance, such as a tribal statute prohibiting union security
agreements, where the NLRA jurisdiction would be
foreclosed.\15\
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\13\Yukon Kuskokwim Health Corp., 341 NLRB 1075 (2004).
\14\Chickasaw Nation d/b/a Winstar World Casino, 362 NLRB No. 109
(June 4, 2015).
\15\NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002).
---------------------------------------------------------------------------
The NLRB's finding that the NLRA applies to tribal
enterprises, barring the above exceptions, is now settled law.
The Supreme Court decided against hearing two challenges to the
NLRB's San Manuel decision, and every court that has considered
the San Manuel framework--the D.C. Circuit, the Sixth Circuit,
and a federal district court in the Eighth Circuit--has upheld
it.\16\
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\16\NLRB v. Little River Band of Ottawa Indians v. NLRB, 788 F.3d
537 (6th Cir. 2015), cert. denied (U.S. June 27, 2016); Soaring Eagle
Casino and Resort v. NLRB, 791 F.3d 648 (6th Cir. 2015), cert. denied
(U.S. June 27, 2016); San Manuel Indian Bingo & Casino v. NLRB, 475
F.3d 1306 (D.C. Cir. 2007); NLRB v. Fortune Bay Resort Casino, 688
F.Supp.2d 858 (D. Minn. 2010).
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Many Employment Laws Apply to Tribal Enterprises, but H.R. 986 Singles
Out Workers' Rights To Organize Unions and Collectively Bargain
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)\17\
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\17\Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009).
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Occupational Safety and Health Act
(OSHA)\18\
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\18\Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir.
1996).
---------------------------------------------------------------------------
Employee Retirement Income Security Act
(ERISA)\19\
---------------------------------------------------------------------------
\19\Lumber Industry Pension Fund v. Warm Springs Forest Products
Industries, 939 F.2d 683 (9th Cir. 1991); Smart v. State Farm Ins., 868
F.2d 929 (7th Cir. 1989).
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Title III (public accommodations) of the
Americans with Disabilities Act (ADA)\20\
---------------------------------------------------------------------------
\20\Florida Paraplegic Association v. Miccosukee Tribe of Florida,
166 F.3d 1126 (11th Cir. 1999).
---------------------------------------------------------------------------
The employer mandate in the Patient
Protection and Affordable Care Act (ACA)\21\
---------------------------------------------------------------------------
\21\Northern Arapaho Tribe v. Burwell, No. 14-CV-247 SWS, 2015 WL
4639324 (D. Wyo. July 2, 2015).
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The Family and Medical Leave Act (FMLA)\22\
---------------------------------------------------------------------------
\22\Bodi v. Shingle Springs Band of Miwok Indians, 19 F. Supp. 3d
978 (E.D. Cal. 2014).
---------------------------------------------------------------------------
Employment statutes are hardly the only federal laws that
apply to Indian tribes under Coeur d'Alene. Courts have also
applied the Federal Trade Commission Act, the Federal Truth in
Lending Act, the Electronic Fund Transfer Act,\23\ Section
6050I of the Internal Revenue Code involving the reporting of
cash transaction in excess of $10,000,\24\ and numerous federal
criminal laws\25\ to tribal enterprises or persons when none of
the three exceptions are met.
---------------------------------------------------------------------------
\23\FTC v. AMG Services, Inc., 2013 WL 787075, at *12 (D. Nev. July
16, 2013), report and recommendation adopted, No. 2:12-CV-00536-GMN,
2014 WL 910302 (D. Nev. Mar. 7, 2014).
\24\United States v. White, 237 F.3d 170 (2d Cir. 2001).
\25\See, e.g., United States v. Gallagher, 275 F.3d 784 (9th Cir.
2001) (felon in possession of ammunition); United States v. Funmaker,
10 F.3d 1327 (7th Cir. 1993) (damaging or destroying property used in
interstate commerce); United States v. Blue, 722 F.2d 383 (8th Cir.
1983) (drug laws).
---------------------------------------------------------------------------
Thus, the effort to attack the jurisdiction of the NLRA to
the exclusion of other federal labor laws suggests that animus
toward labor unions motivates this legislation.
For Employees of Tribal Enterprises, the NLRA Provides the Only
Protection Against Discrimination and Harassment, Yet the Bill Provides
No Legal Remedies When Issues Like Discrimination and Harassment Arise
in Tribal Enterprises
While most federal labor and employment laws do apply to
tribal enterprises, two notable exceptions are the Age
Discrimination in Employment Act\26\ and Title VII of the Civil
Rights Act.\27\ Thus, employees of a tribal enterprise who are
subjected to sexual harassment, for example, cannot bring a
claim to the U.S. Equal Employment Opportunity Commission
(EEOC) or in federal court--even when the alleged perpetrator
and victim are both non-tribal members employed at the tribal
enterprise.
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\26\Williams v. Poarch Band of Creek Indians, 2016 WL 6081345 (11th
Cir. Oct. 18, 2016).
\27\Congress expressly excludes tribes from the definition of
``employer'' under Title VII. 42 U.S.C. Sec. 2000e(b).
---------------------------------------------------------------------------
For example, a woman who took a job with a 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.''\28\ The U.S. District
Court for the Southern District of Florida dismissed her case
citing the tribe's sovereign immunity under Title VII.\29\ For
workers such as these who have no protection from federal
antidiscrimination laws, unions are the sole remaining recourse
to combating discrimination and harassment, because they can
negotiate a collective-bargaining agreement that enforces an
employee's right to be free from such conduct in the workplace.
---------------------------------------------------------------------------
\28\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).
\29\Roselius v. McDaniel, No. 95-6887, slip op. at 1 (S.D. Fla.
Aug. 7, 1997) (dismissing case for lack of subject matter
jurisdiction).
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Parity and Sovereignty Should Not Outweigh Workers' Rights, Especially
When Tribes Are Exempted From Labor Laws That Cover State and Local
Governments
Committee Republicans' primary argument in favor of H.R.
986 is that the NLRA does not apply to state and local
governments, and tribes should have parity as a governmental
entity. Under this principle, Committee Republicans contend
that tribes should be able to decide whether to allow employees
to form unions under a tribal labor relations ordinance, just
as state governments are free to decide whether to allow public
employees to form unions. This parity argument falls short in
three important ways:
First, tribal casinos and similar businesses are commercial
enterprises in direct competition with similar non-tribal
businesses. According to the National Indian Gaming Association
(NIGA), the tribal gaming industry in the United States is a
$28 billion per year enterprise. California's tribal casinos
are an $8 billion per year enterprise eclipsing the Las Vegas
strip (at $6 billion per year).\30\ Although these enterprises
raise revenues for the tribe, courts have found that the total
impact on tribal sovereignty from NLRA jurisdiction is not
sufficient ``to demand a restrictive construction of the
NLRA.''\31\ 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.
---------------------------------------------------------------------------
\30\Testimony of Jack Gribbon, California Political Director,
UNITEHERE! International Union, AFL-CIO Before the Health, Employment,
Labor and Pensions Subcommittee of the Committee on Education and the
Workforce, U.S. House of Representatives, Legislative Hearing on H.R.
986, the Tribal Labor Sovereignty Act of 2017, March 29, 2017, p.1.
https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=401479.
\31\San Manuel Indian Bingo and Casino, 475 F.3d at 1315.
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Second, approximately 75 percent of the 600,000 employees
of tribal casinos are non-Indians.\32\ 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 employees in local or state government. Since
the majority of employees at tribal enterprises lack parity
with the political rights enjoyed by state and local government
employees to petition their employer, the parity argument
between tribal government and state and local government falls
apart.
---------------------------------------------------------------------------
\32\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.
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Third, tribes are exempted from employment laws that apply
to state and local governments. State and local governments are
covered by Title VII of the Civil Rights Act and the public
accommodations provisions of the Americans with Disabilities
Act. As noted above, Indian tribes are expressly exempted from
coverage. Parity with state and local governments would require
tribes also be subject to these employment laws.
Tribal Labor Relations Ordinances Are Not an Adequate Alternative to
the NLRA Without Minimum Standards
Committee Republicans point to the adoption of Tribal Labor
Relations Ordinances (TLRO) by some tribes as evidence of 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, although certain TLROs fall far short of
the protections afforded under the NLRA.\33\ 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 ordinances, if at all, without
transparency or political accountability to the non-tribal
employees of its commercial businesses.
---------------------------------------------------------------------------
\33\Testimony of Jack Gribbon, California Political Director,
UNITEHERE! International Union, AFL-CIO Before the Health, Employment,
Labor and Pensions Subcommittee of the Committee on Education and the
Workforce, U.S. House of Representatives, Legislative Hearing on H.R.
986, the Tribal Labor Sovereignty Act of 2017, March 29, 2017, p.3.
https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=401479.
---------------------------------------------------------------------------
Without any accountability, H.R. 986 would allow tribes to
enact laws that outright prohibit unions. Indeed, the Blackfeet
Nation in Montana already has a Tribal Employment Rights
Ordinance that states, ``Unions are prohibited on the Blackfeet
Indian Reservation.''\34\ Under H.R. 986, this attack on the
human right to join a union would have the force of law.
---------------------------------------------------------------------------
\34\Blackfeet Tribal Employment Rights Ordinance & Safety
Enforcement Act, Section 3-107 http://www.btero.com/blackfeet--tero--
2010.pdf.
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In contrast, the NLRA already allows tribal enterprises and
unions to agree to TLROs that are acceptable to both parties.
Evidence was introduced at the March 29, 2017 hearing that,
after a union is certified as the employees' bargaining
representative by the NLRB, it may enter into an agreement with
a tribe regarding the terms of a TLRO that would govern their
collective bargaining relationship. The union would still be
able to exercise its rights under the NLRA if the tribal
enterprise fails to abide by the TLRO. If H.R. 986 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 tribal workers--the
majority of whom are not members of the tribe.
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. 986 Exempts U.S. Workers When
Employed by Indian Tribes
This bill deprives workers of the right to organize and
bargain collectively at commercial enterprises operated by
Indian tribes, even though the U.S. government insists that
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 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 recognition of the right to collective
bargaining.
When negotiating with potential trading partners, Democrats
and Republicans alike have insisted that other 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. 986 would strip
hundreds of thousands of the right to freedom of association
and the right to collective bargaining at Indian tribal
enterprises.
The Congressional Budget Office Determined That Enactment of H.R. 986
Would Have an Adverse Economic Impact on Workers in Tribal Enterprises
The Congressional Budget Office (CBO) determined that H.R.
986 would ``impose a private-sector mandate'' under the
Unfunded Mandates Reform Act by eliminating workers' rights to
file unfair labor practice claims with the NLRB. As explained
by the CBO, ``[c]urrently, 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 that right, H.R. 986
burdens employees of tribal enterprises with economic costs,
including ``the value of forgone monetary awards resulting from
claims that would have been filed with the NLRB in the absence
of the bill.''\35\
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\35\Congressional Budget Office Cost Estimate for the Tribal Labor
Sovereignty Act of 2017 (H.R. 986), July 21, 2017 https://www.cbo.gov/
system/files/115th-congress-2017-2018/costestimate/hr986.pdf.
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The CBO noted that, by eliminating the right of employees
``to form a union and bargain collectively,'' H.R. 986 would
impose a broader adverse impact, but the CBO did not consider
this broader impact part of the direct cost of the mandate.\36\
---------------------------------------------------------------------------
\36\Id.
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H.R. 986 Is Unnecessary Because the National Labor Relations Board's
Current Approach Balances Tribal Sovereignty and Workers' Rights
Finally, this legislation is not needed, because the NLRB's
case-by-case approach balances two important 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 garb of tribal
sovereignty. It is another attempt by Committee Republicans 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.
Raul M. Grijalva.
Marcia L. Fudge.
Gregorio Kilili Camacho Sablan.
Suzanne Bonamici.
Alma S. Adams.
Donald Norcross.
Raja Krishnamoorthi.
Adriano Espaillat.
Susan A. Davis.
Joe Courtney.
Jared Polis.
Frederica S. Wilson.
Mark Takano.
Mark DeSaulnier.
Lisa Blunt Rochester.
Carol Shea-Porter.
[all]