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Indian Tribe May Enact Right-to-Work Laws Prohibiting Compulsory Union Membership for All Individuals Employed within Tribal Lands

February 2002
By Eric B. Sigda, Esq., Greenberg Traurig, New York Office

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On January 11, 2002, in a case of significant impact on Indian tribes’ right to regulate employment on tribal land, the United States Court of Appeals for the Tenth Circuit ruled that Indian tribes retain the sovereign power to enact ordinances invalidating labor agreements that require employees, as a condition of their employment, to join a labor union. NLRB v. Pueblo of San Juan, ___ F.3d ___, 2002 WL 32718 (10th Cir. 2002).

Eric B. Sigda
"This decision may have far-reaching implications with respect to Indian tribe regulation of employment and union activity. It permits an Indian tribe with sovereign authority over its land and affairs to enact a right-to-work statute preventing unions from organizing on Indian lands or lessees from being forced to use union employees."

This case originates out of a labor dispute involving the San Juan Pueblo Indian Nation (“Pueblo”) and The Western Council of Industrial Workers (“Union”), a union seeking to be recognized by a lumber company operating on Pueblo lands. Pueblo is a federally recognized Indian tribe located in New Mexico. Pueblo leases certain portions of its tribal land through federally approved leases to non-tribal businesses as a source of income and as a means to provide employment for tribal members. On November 6, 1996, the San Pueblo Tribal Council, the Pueblo’s government, enacted a so-called “right-to-work” ordinance. Specifically, the ordinance prohibited employers and unions from entering union security agreements that require employees to maintain membership in a union or to pay dues to a union as a condition of employment (sometimes called a “union shop”). The ordinance also applied to lessees. Thus, lessees, such as the lumber company, could not require tribal members to join in, or pay dues to, a union in order to be hired by the lessee.

In 1996, the Union sought to enter into a collective bargaining agreement with the lumber company as the exclusive bargaining agent for the employees. Relying on the right-to-work ordinance, the lumber company refused. The Union filed an unfair labor practices charge with the National Labor Relations Board (“NLRB”). On January 12, 1998, the NLRB agreed with the Union and filed suit seeking declaratory and injunctive relief in the United States District Court for the District of New Mexico alleging that federal law barred the Pueblo from enacting the right-to-work ordinance and lease provisions. On November 30, 1999, the New Mexico district court ruled in favor of the Pueblo and against the NLRB and the Union, which had intervened in the action. NLRB v. Pueblo of San Juan, 30 F. Supp. 2d 1348 (D.N.M. 1998). The NLRB and the Union appealed, and a three member panel of the Tenth Circuit, in a split decision, upheld the district court’s decision. Subsequently, the Tenth Circuit, sitting en banc (with all of its judges), reheard the matter, and on January 11, 2002 issued its decision upholding the prior decisions.

Two provisions of the National Labor Relations Act (“NLRA”) were at issue in this case. Section 8(a)(3) protects the right of a union and employer to enter into union security agreements. 29 U.S.C. § 158(a)(3). However, Section 14(b) permits states and territories to exempt themselves from the union security agreements provision found in 8(a)(3) and enact right-to-work laws prohibiting union or agency shops. 29 U.S.C. § 164(b). The NLRB and the Union argued that the Pueblo and all Indian tribes must adhere to 8(a)(3) strictly and cannot prohibit union shop agreements because Congress explicitly carved out that exception for states and territories only.

The Tenth Circuit disagreed, holding that the Pueblo, like states and territories, may exercise its authority to enact right-to-work laws and that Congress in enacting 8(a)(3) and 14(b) did not intend to strip tribal governments of this authority. The Tenth Circuit reasoned that because the NLRA does not contain any language regarding Indian tribes, this silence does not work a divestiture of tribal power. Additionally, the court noted that although the NLRA through 8(a)(3) sets forth a strong national preference in favor of union security and union-security agreements, it does not legally preempt other sovereign authorities such as states and territories from enacting right-to-work laws prohibiting union shop agreements, as evidenced by 14(b). Thus, the Tenth Circuit concluded that in the absence of any clear congressional intent, Congress did not intend by its NLRA provisions to strip Indian tribes such as the Pueblo of their retained sovereign authority to enact right-to-work laws and be governed by them. Accordingly, the Court upheld the Pueblo’s right-to-work laws and the lease provisions entered into by the Pueblo.

In reaching its decision the Tenth Circuit emphasized that Indian tribes retain the sovereign power to enact right-to-work ordinances and to enter into lease agreements with right-to-work provisions because Congress did not make a clear retrenchment of tribal power. The Circuit noted that Indian tribes are distinct independent political communities that derive their self-governmental powers by reason of their original tribal sovereignty.

Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the United States, which they predate.

NLRB v. Pueblo of San Juan, 2002 WL 32718 at headnote 6.

It should be noted that this case generated one dissenting opinion, that, in contrast to the majority opinion, contended that Indian tribes do not possess the full attributes of sovereignty and that Congress by its silence implicitly divested Indian tribes of the power to enact ordinances that conflict with the union security protections found in § 8(a)(3).

This decision may have far-reaching implications with respect to Indian tribe regulation of employment and union activity. It permits an Indian tribe with sovereign authority over its land and affairs to enact a right-to-work statute preventing unions from organizing on Indian lands or lessees from being forced to use union employees. In particular, given the growth of the casino and gaming industry and related businesses on tribal lands, this decision could allow Indian tribes to enact right-to-work laws and effectively thwart attempts at union intervention. It remains to be seen, however, whether other federal circuits will follow the Tenth Circuit’s approach.


© 2002 Greenberg Traurig

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