Greenberg Traurig Alert
Indian Tribe May Enact Right-to-Work Laws Prohibiting Compulsory Union
Membership for All Individuals Employed within Tribal Lands
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).
|"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
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
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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