788 F.3d 537 (6th Cir. 2015), 14-2239, N.L.R.B. v. Little River Band of Ottawa Indians Tribal Gov't

Docket Nº:14-2239
Citation:788 F.3d 537
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LITTLE RIVER BAND OF OTTAWA INDIANS TRIBAL GOVERNMENT, Respondent
Attorney:Kira Dellinger Vol, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Kaighn Smith, Jr., DRUMMOND WOODSUM, Portland, Maine, for Respondent.
Judge Panel:Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges. McKEAGUE, Circuit Judge, dissenting.
Case Date:June 09, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

The Band, a federally recognized Indian tribe, has more than 4,000 enrolled members, most living within or near its aboriginal lands in Michigan. Under the Little Bands Act and the Indian Reorganization Act, 25 U.S.C. 476, the Band enacted a constitution that vests its legislative powers in the Tribal Council and grants the Council power to operate gaming under the Indian Gaming Regulatory Act,... (see full summary)

 
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Page 537

788 F.3d 537 (6th Cir. 2015)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

LITTLE RIVER BAND OF OTTAWA INDIANS TRIBAL GOVERNMENT, Respondent

No. 14-2239

United States Court of Appeals, Sixth Circuit

June 9, 2015

Page 538

On Application for Enforcement of an Order of the National Labor Relations Board. No. 7-CA-51156.

ON BRIEF:

Kira Dellinger Vol, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.

Kaighn Smith, Jr., DRUMMOND WOODSUM, Portland, Maine, for Respondent.

Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

OPINION

Page 539

JULIA SMITH GIBBONS, Circuit Judge.

In this case, we are called on to decide whether the National Labor Relations Board may apply the National Labor Relations Act (NLRA), 29 U.S.C. § § 151-169, to the operation of a casino resort of the Little River Band of Ottawa Indians. The Band's tribal council enacted an ordinance to regulate employment and labor-organizing activities of its employees, including casino employees, most of whom are not members of the Band. The Board issued an order to the Band to cease and desist from enforcing the provisions that conflict with the NLRA. We hold that because the NLRA applies to the Band's operation of the casino, the Board had jurisdiction to

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issue the cease and desist order. Accordingly, we grant the Board's application for enforcement of the order.

I.

The Band is a federally recognized Indian tribe with more than 4,000 enrolled members, most of whom live within or near the Band's aboriginal lands in the State of Michigan. See Little Traverse Bay Bands of Odawa Indians and the Little River Band of Ottawa Indians Act (the Little Bands Act), 25 U.S.C. § 1300k-2(a). Pursuant to the Little Bands Act and the Indian Reorganization Act, 25 U.S.C. § 476, the Band enacted a constitution and amendments thereto, which have been approved by the Secretary of the Interior. The Band's constitution vests the Band's legislative powers in the Tribal Council and grants power to the Tribal Council to operate gaming pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § § 2701-2721.

Pursuant to the IGRA, the Band entered into a compact with the State of Michigan to conduct class III gaming activities, as defined by 25 U.S.C. § 2703(8), on the Band's trust lands in Manistee, Michigan. The gross revenues from the Little River Casino Resort, a tribally-chartered, subordinate organization of the Band, exceed $20 million annually. According to the IGRA, the net revenues from the casino may be used only to fund the Band's tribal governmental operations or programs, to provide for the general welfare of the Band and its members, to promote tribal economic development, to donate to charitable organizations, or to help support the operations of local government. See 25 U.S.C. § 2710(b)(2)(B). The revenues from the casino provide over fifty percent of the Band's total budget.

The record in this case shows that the casino has 905 employees--107 of whom are enrolled members of the Band, 27 of whom are members of other Indian tribes, and 771 of whom are neither members of the Band nor of any other Indian tribe. The majority of casino employees live outside the Band's trust lands, and the majority of the casino's customers are not members of Indian tribes. Apart from the casino, 245 employees currently work for the Band's other governmental departments and subordinate organizations. Of this number, 108 are members of the Band and 137 are not members of the Band. In sum, of the Band's 1,150 total employees, 908 are not members of the Band.

In 2005, the Tribal Council enacted the Band's Fair Employment Practices Code (FEPC), which it amended most recently on July 28, 2010. In pertinent part, the FEPC contains Article XVI, " Labor Organizations and Collective Bargaining," and Article XVII, " Integrity of Fair Employment Practices Code," which regulate labor-organizing activities and collective bargaining. These articles apply to casino employees and labor organizations representing or seeking to represent casino employees. As amended, Article XVI, inter alia, grants to the Band the authority to determine the terms and conditions under which collective bargaining may or may not occur; prohibits strikes, work stoppage, or slowdown by the Band's employees and, specifically, by casino employees; prohibits the encouragement and support by labor organizations of employee strikes; prohibits any strike, picketing, boycott, or any other action by a labor organization to induce the Band to enter into an agreement; subjects labor organizations and employees to civil penalties for strike activity; subjects employees to suspension or termination for strike activity; subjects labor organizations to decertification for strike activity; subjects labor organizations to a ban on entry to tribal lands for

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strike activity; and requires labor organizations doing business within the jurisdiction of the Band to apply for and obtain a license. Article XVI also precludes collective bargaining over the Band's decisions to hire, lay off, recall, or reorganize the duties of its employees; precludes collective bargaining over any subjects that conflict with the Band's tribal laws; exempts the Band from the duty to bargain in good faith over the terms and conditions under which the Band's employees may be tested for alcohol and drug use; limits the duration of collective bargaining agreements to three years or less; provides that decisions by the Band, through its Tribal Court, over disputes involving the duty to bargain in good faith or alleged conflicts between a collective-bargaining agreement and tribal laws shall be final and not subject to appeal; and limits the period of time during which employees may file a deauthorization petition. Further, Article XVI prohibits the requirement of membership in a labor organization as a condition of employment. It also prohibits the deduction of union dues, fees, or assessments from the wages of employees unless the employee has presented, and the Band has received, a signed authorization of such deduction. As amended, Article XVII prohibits Band employers, such as the casino, from giving testimony or producing documents in response to requests or subpoenas issued by non-tribal authorities engaged in investigations or proceedings on behalf of current or former employees, when such employees have failed to exhaust their remedies under the FEPC.

On March 28, 2008, the Teamsters, Local No. 406, filed a Charge Against Employer, asserting that the Band committed an unfair labor practice in violation of the NLRA. On December 10, 2010, the Acting General Counsel of the Board filed an unfair labor practice complaint, alleging that the above provisions of Articles XVI and XVII of the FEPC interfere with, restrain, and coerce employees in the exercise of their rights guaranteed by Section 7 of the NLRA, 29 U.S.C. § 157, and therefore violate Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1). In a proceeding before the Board, the parties stipulated that the only issues for decision were whether the Board has jurisdiction over the Band and, if so, whether the Band violated Section 8(a)(1) of the NLRA, by applying the above provisions of the FEPC. Little River Band of Ottawa Indians Tribal Gov't, 359 N.L.R.B. No. 84, slip op. at 2 (2013). The only argument the Band presented in its defense was that the Board lacked jurisdiction because the application of the NLRA would impermissibly interfere with the Band's inherent tribal sovereignty to regulate labor relations on its tribal lands.

The Board concluded it had jurisdiction, held that the Band violated the NLRA as alleged, and issued a cease and desist order. Little River, 359 N.L.R.B. No. 84, slip op. at 3-6. In reaching this decision, the Board applied its holding in San Manuel Indian Bingo & Casino, 341 N.L.R.B. 1055 (2004), aff'd, 475 F.3d 1306, 374 U.S.App.D.C. 435 (D.C. Cir. 2007), in which it decided the merits of a similar jurisdictional challenge. Little River, 359 N.L.R.B. No. 84, slip op. at 2-3. In San Manuel, the Board adopted a framework to determine whether federal Indian law or policy constrains its jurisdiction. 341 N.L.R.B. at 1059-62. That framework begins with the statement from Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960), that " a general statute in terms applying to all persons includes Indians and their property interests." 341 N.L.R.B. at 1059 (quoting Tuscarora, 362 U.S. at 116). In San Manuel, the Board noted three exceptions to the Tuscarora principle,

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which were first enumerated by the Ninth Circuit in Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985). 341 N.L.R.B. at 1059 (citing Coeur d' Alene, 751 F.2d at 1116). The Board followed this approach, holding that general statutes do not apply to Indian tribes if: " (1) the law 'touches exclusive rights of selfgovernment in purely intramural matters'; (2) application of the law would abrogate treaty rights; or (3) there is 'proof' in the statutory language or legislative history that Congress did not intend the law to apply to Indian tribes." 359 N.L.R.B. No. 84, slip op. at 3 (quoting Coeur d' Alene, 751 F.2d at 1116). " In any of these situations, Congress must expressly apply a statute to Indians before . . . it reaches them." Id. (alteration in original) (citing Coeur d' Alene, 751 F.2d at 1116). Applying this framework, the Board determined that application of the NLRA to the casino would not interfere with the Band's " exclusive rights of self-government in purely intramural matters." Id. The Board also found the second and third Coeur d'Alene exceptions inapplicable. Id. The Board saw " no merit...

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