HomePublicationsNewsletter ArchiveNewslettersVolume 20Issue 31National Labor Relations Board Reaffirms Decision in Soaring Eagle Appeal

On Monday, October 27, 2014, the National Labor Relations Board (“NLRB”) reaffirmed an administrative judge’s decision issued on March 26, 2012, which requires the Soaring Eagle Casino and Resort (“Soaring Eagle”) to allow its workers to discuss or promote unionization under certain circumstances. Notably, in April of 2013, the NLRB issued 359 NLRB No. 92 regarding Soaring Eagle Casino’s non-unionization policies, which has been incorporated into the most recent decision by reference.  The Decision and Order from Case 07-CA-053586 also requires the casino to offer full reinstatement to a former employee who was suspended as a result of the dispute including the payment of losses incurred during the suspension.

The NLRB’s recent decision and order states in part that “Respondent’s no-solicitation policy is facially invalid and overly broad because it prohibits employees from soliciting in any work area—defined as ‘any place where any employees perform job duties at the Casino’ – without distinguishing between working time and nonworking time, and therefore the policy can be read to prohibit solicitation during nonworking time,” 361 NLRB No. 73 (2014).

The dispute arose out of the dismissal of a housekeeping staff member employed at Soaring Eagle for repeatedly promoting unionization efforts between September 2009 and November 2010 in violation of the Saginaw Chippewa Indian Tribe’s (“Tribe”) non-solicitation policy. In April of 2011, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America filed an initial complaint with the NLRB alleging that the dismissal and the Tribe’s non-solicitation policy violated sections of the National Labor Relations Act (“Act”). The Tribe argued that the Act did not apply to the Tribe, in part because of the Tribe’s sovereign immunity and government status.

In the March 2012 ruling, Administrative Law Judge Michael A. Rosas stated that the Act applied to the Tribe’s activities at the casino and that the non-solicitation policy violated certain sections of the federal law. The decision stated, in part, that “applying the Act to the Tribe’s casino operations would not interfere with its rights of self-governance or intramural matters” and that portions of the non-solicitation policy were “unlawfully overbroad.”

In the Tribe’s Brief in Support appealing this decision, the Tribe argued again that the Act did not apply to the Tribe because of the Tribe’s protected treaty rights, existing NLRB precedent and because the Tribe is a government and not an “employer” under the Act. Furthermore, the Tribe stated that “the Saginaw Tribe has established through expert testimony in these proceedings the undisputed existence of treaty rights that cannot be abrogated by the Board’s application of the [Act]…the Saginaw Tribe respectfully requests that the Board refrain from asserting jurisdiction over the Saginaw Tribe and that these proceedings be dismissed.”

Notably, on Wednesday, November 5, 2014, the Saginaw Chippewa Indian Tribe (“Tribe”), owners of the Soaring Eagle, announced that unionization efforts by Security, Police and Fire Professionals of America failed to unionize the casino’s security personnel. “I am extremely pleased with the election results with nearly 90% of our security staff wishing to remain union free. I look forward to our continued teamwork and sincerely appreciate their vote of confidence,” stated casino Interim CEO, Bob VanWert. According to the Tribe, this is the fifth failed attempt by various unions to unionize employees at the casino.

To access the full NLRB Decision and Order issued on October 27, 2014, please visit: http://www.nlrb.gov/case/07-CA-053586

 

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