Soaring Eagle Casino & Resort v. Nat'l Labor Relations Bd.

• Citation: 791 F.3d 648
• Decision Date: 01 July 2015
• Docket Number: Nos. 14–2405,14–2558.,s. 14–2405
• Parties: SOARING EAGLE CASINO AND RESORT, an Enterprise of the Saginaw Chippewa Indian Tribe of Michigan, Petitioner/Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

791 F.3d 648

SOARING EAGLE CASINO AND RESORT, an Enterprise of the Saginaw Chippewa Indian Tribe of Michigan, Petitioner/Cross–Respondent

v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.

Nos. 14–2405

14–2558.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2015.

Decided and Filed: July 1, 2015.

Rehearing En Banc Denied Sept. 29, 2015.

ARGUED:William A. Szotkowski, Hogen Adams PLLC, St. Paul, Minnesota, for Petitioner/Cross–Respondent. Kira D. Vol, National Labor Relations Board, Washington, D.C., for Respondent/Cross–Petitioner. ON BRIEF:William A. Szotkowski, Jessica Intermill, Hogen Adams PLLC, St. Paul, Minnesota, Sean Reed, Saginaw Chippewa Indian Tribe, Mt. Pleasant, Michigan, for Petitioner/Cross–Respondent. Kira D. Vol, Linda, Dreeben, National Labor Relations Board, Washington, D.C., for Respondent/Cross–Petitioner. Jennifer H. Weddle, Tory A. Eid, Maranda S. Compton, Greenberg Traurig, LLP, Denver, Colorado, Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York, Sarah Krakoff, University Of Colorado Law School, Boulder, Colorado, Lloyd B. Miller, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C., for Amici Curiae.

Before: WHITE, DONALD, and O'MALLEY,^* Circuit Judges.

O'MALLEY, J., delivered the opinion of the court which DONALD, J., joined, and WHITE, J., joined in all but section III(B). WHITE, J. (pp. 675–77), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KATHLEEN M. O'MALLEY, Circuit Judge.

This case involves the scope of the National Labor Relations Board's (“Board”) jurisdiction over an Indian tribe's operation of a casino on reservation land. The Soaring Eagle Casino & Resort (“Casino”), owned and operated by the Saginaw Chippewa Indian Tribe of Michigan (“the Tribe”), discharged Susan Lewis for violating the Casino's no-solicitation policy. The Board found that the Casino's no-solicitation policy violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., and ordered the Casino to cease and desist from maintaining a no-solicitation rule and to reinstate Susan Lewis to her former position with back pay and benefits. For the following reasons, we ENTER JUDGMENT ENFORCING the Board's Decision and Order, finding that the Board has jurisdiction over the Casino's employment practices.

I

A

The Tribe is a federally recognized Indian tribe located in Mount Pleasant, Michigan. See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 80 Fed.Reg.1942–02 (Jan. 14, 2015); Soaring Eagle Casino & Resort, 359 NLRB 92, 2013 WL 1646049, at *4 (2013). The Tribe is a successor to two treaties between the United States of America and the Chippewa Indians of Saginaw, Swan Creek, and Black River, Michigan, one in 1855 and one in 1864. See 14 Stat. 657 (1864); 11 Stat. 633 (1855). The 1855 Treaty involved a land swap—including land in Isabella County, Michigan—between the United States and the Indian tribes, liability releases by the tribes, and support payments from the United States to the tribes for a variety of purposes. 11 Stat. 633. The 1864 Treaty included the release (to the United States) of some of the property reserved to the tribes in the 1855 Treaty, but, as relevant to the present dispute, also included an agreement by the United States to “set apart for the exclusive use, ownership, and occupancy [by the Tribe]” property in Isabella County as a reservation. 14 Stat. 657. It is undisputed that the Treaties preserved the Tribe's right to exclude non-Indians from living in the territory. Soaring Eagle, 2013 WL 1646049, at *4 & n. 5. Unsurprisingly, considering the date of the Treaties—in an era before the creation of a federal regulatory structure—the Treaties did not mention application of federal regulations to members of the Tribe or to the Tribe itself.

The property reserved for the “exclusive use, ownership, and occupancy” of the Tribe eventually became the Isabella Reservation, located within Isabella County and Arenac County in central Michigan. Id. at *5. The Tribe has over 3,000 members, and is governed by a twelve-person tribal council which is elected by the Tribe. Id. The tribal council enacts laws applicable to tribal members, and manages economic development for the Tribe. Id. In 1993, under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (2012) ( “IGRA”), the Tribe and the State of Michigan entered a compact, subsequently approved by the United States, that allowed the Tribe to conduct gaming enterprises on the Isabella reservation. Id. The Tribe opened the Casino on land held in trust for the Tribe by the United States.¹ Id. The Tribe enacted its own gaming code to regulate internal controls and licensing criteria for employees. Id. The Tribe also created a regulatory body, the Tribal Gaming Commission, to enforce the gaming code. Id.

On November 16, 1993, the Tribe established Soaring Eagle Gaming as a subdivision of the tribal government chartered to operate and manage the Casino. Id. The tribal council hires all management-level employees for the Casino, requires frequent reports from managers on the Casino's performance, and approves contracts with outside vendors.Id. The tribal council also decides how to distribute the Casino's revenue for tribal functions. Id. The Casino is situated on land held in trust for the Tribe by the United States.

Of the Casino's approximately 3,000 employees, 7% are members of the Tribe, as are 30% of all management-level employees. Id. at *6. The Casino generates approximately $250 million in gross annual revenues and attracts over 20,000 customers per year, many of whom are not members of the Tribe. Id. The Casino advertises using billboards, newspapers, radio, and television, and competes with privately-owned casinos throughout Michigan. Id. The revenues from the Casino constitute almost 90% of the Tribe's income, providing the vast majority of funding necessary to run the Tribe's 37 departments and 159 programs. Id. These programs and departments provide for health administration, social services, tribal police and fire departments, utilities, a tribal court system, and education for members of the Tribe. Id. The operation of the Casino allows the Tribe to provide many services previously not available to its members because it lacks access to exploitable natural resources and has an insufficient tax base.

Portions of the Tribe's gaming code relevant to employee conduct are contained in the Soaring Eagle Casino & Resort Associate Handbook (“Handbook”). Section 5.3 of the Handbook, approved by the tribal council on October 13, 2006, includes a no-solicitation policy that prevents any solicitation by employees, including solicitation related to union activities, on Casino property. The Handbook defines “Solicitation” as:

[A]ny verbal or written communication and the distribution or emails, circulars, handbills or other documents/literature of any kind by any employee or group of employees to another employee or group of employees that encourages, advocates, demands, or requests a contribution of money, time, effort, personal involvement, or membership in any fund ... or labor organization of any kind or type....

Section 5.3 prohibits, inter alia, the following actions:

2. Employees are prohibited from soliciting in any work area. Employees are also prohibited from soliciting during their assigned working time or soliciting other employees during their assigned working time....

3. Employees are prohibited from posting notices, photographs, or other written materials on bulletin boards or any other Soaring Eagle premises.

The Handbook further provides that “[a]ny person violating this policy will be subject to disciplinary action up to, and including, termination.”

B

Susan Lewis, who is not a member of the Tribe, was intermittently employed as a housekeeper at the Casino beginning on July 13, 1998. Soaring Eagle, 2013 WL 1646049, at *8. On September 29, 2009, Lewis engaged in union solicitation activities on behalf of the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (“the Union”). Id. Lewis's supervisors warned her that such activities violated the Handbook, and informed her that further solicitation could lead to adverse employment actions. Id. Lewis nevertheless again engaged in solicitation activities on August 25, 2010. This time, Lewis received a written notice informing her of the violation and cautioning her that she could not engage other employees in discussions about union activities. Id. Management later observed Lewis handing out wrist bands stating “BAND TOGETHER 2010” to other housekeepers on October 4, 2010. Id. The Casino then suspended Lewis.Id.

When Lewis returned to work after her suspension, she again engaged another housekeeper in a discussion about the Union while Lewis and the housekeeper were working. Id. at *9. On November 15, 2010, the Casino discharged Lewis for engaging in union solicitation activities in violation of the no-solicitation policy. Id.

C

The Union filed a charge with the Board on April 1, 2011, and the General Counsel for the Board issued an amended complaint on October 12, 2011. The Union alleged that the Tribe violated § 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1),² by having a no-solicitation policy and banning employee discussion of union activities, and §§ 8(a)(1),(3),³ 29 U.S.C. §§ 158(a)(1),(3), by suspending and terminating Lewis for engaging in union solicitation activities. Soaring Eagle, 2013 WL 1646049, at *4. The Tribe filed its response, contending that the NLRA did not apply to the Tribe's activities as a sovereign, and the Board subsequently held a hearing regarding the Tribe's liability. Id.

The Administrative Judge (“AJ”) issued his decision and order on March 26, 2012, finding that the Board had jurisdiction over the Casino and Tribe and that the...