National Labor Relations Bd. & Local Union No. 1385 v. Pueblo of San Juan, Nos. 99-2011

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before TACHA, Chief Judge, HOLLOWAY, Senior Circuit Judge, SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY; HOLLOWAY; BRISCOE; LUCERO; MURPHY
• Citation: 276 F.3d 1186
• Parties: (10th Cir. 2002) NATIONAL LABOR RELATIONS BOARD, Plaintiff-Appellant, and LOCAL UNION NO. 1385, WESTERN COUNCIL OF INDUSTRIAL WORKERS, Intervenor-Appellant, v. PUEBLO OF SAN JUAN, Defendant-Appellee. NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Amicus Curiae
• Docket Number: Nos. 99-2011,99-2030
• Decision Date: 11 January 2002

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276 F.3d 1186 (10th Cir. 2002) NATIONAL LABOR RELATIONS BOARD, Plaintiff-Appellant, and
LOCAL UNION NO. 1385, WESTERN COUNCIL OF INDUSTRIAL WORKERS, Intervenor-Appellant,

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v.
PUEBLO OF SAN JUAN, Defendant-Appellee. NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Amicus Curiae. Nos. 99-2011, 99-2030 UNITED STATES COURT OF APPEALS TENTH CIRCUIT January 11, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-98-35-MV/RLP)

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Nancy E. Kessler Platt, Supervisory Attorney, (Leonard R. Page, Acting General Counsel, John H. Ferguson, Associate General Counsel, Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Margery E. Lieber, Assistant General Counsel, and Eric G. Moskowitz, Deputy Assistant General Counsel, with her on the brief) of the National Labor Relations Board, Washington, D.C., for Plaintiff-Appellant.

Lee Bergen (Wayne H. Bladh, Daniel I.S.J. Rey-Bear, Thomas J. Peckham, with him on the brief) of Nordhaus, Haltom, Taylor, Taradash & Bladh, Albuquerque, New Mexico for Defendant-Appellee.

Harlan Bernstein of Jolles & Bernstein, PC, Portland, Oregon, Matthew E. Ortiz of Catron, Catron & Sawtell, PA, Santa Fe, New Mexico, Michael T. Garone of Jolles, Bernstein & Garone, Portland, Oregon, and Morton S. Simon of Simon, Oppenheimer & Ortiz, Santa Fe, New Mexico, on the briefs for Intervenor-Appellant.

Mickey D. Barnett, Law Offices of Mickey D. Barnett, P.A., Albuquerque, New Mexico and John C. Scully, Springfield, Virginia, filed an amicus curiae brief for the National Right to Work Foundation.

Before TACHA, Chief Judge, HOLLOWAY, Senior Circuit Judge, SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges.

ON REHEARING EN BANC

HOLLOWAY, Senior Circuit Judge.

In 1996 the San Juan Pueblo tribal council enacted a right-to-work ordinance and also adopted a lease containing similar right-to-work provisions. These actions were challenged by the instant declaratory judgment and injunction suit brought by the National Labor Relations Board (NLRB or the Board) and Local Union No. 1385 of the Western Council of Industrial Workers (the Union) as an intervenor. After rejection of this suit by the district court, the Board and the intervening Union brought this appeal from the district court's decision granting summary judgment in favor of the Pueblo.

I

The relevant facts are undisputed. San Juan Pueblo is a federally-recognized Indian tribe located in New Mexico. Most of its 5,200 members live on tribal lands that

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are held in trust by the United States for the Pueblo. The Pueblo is governed by a tribal council, which is vested with legislative authority over tribal lands. Through federally-approved leases, the Pueblo leases certain portions of its tribal land to non-tribal businesses as a source of generating tribal income and as a means of employment for tribal members. The origins of this case lie in a labor dispute involving a lumber company operating on leased lands since August, 1996. The history of the leases as well as the dispute, which has now been settled, is described in the District Court's opinion. NLRB v. Pueblo of San Juan, 30 F. Supp. 2d 1348, 135051 (1998).

On November 6, 1996, the San Juan Pueblo Tribal Council enacted Tribal Ordinance No. 96-63 which it amended on February 4, 1998. The ordinance in substance is a so-called "right-to-work" measure. The Pueblo asserts that the ordinance is a valid exercise of its inherent sovereign authority. Id. at 1351. As amended, the ordinance prohibits the making of agreements containing union-security clauses covering any employees, whether tribal members or not. Section 6(a) of the ordinance reads:

No person shall be required, as a condition of employment or continuation of employment on Pueblo lands, to: (i) resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization; (ii) become or remain a member of a labor organization; (iii) pay dues, fees, assessments or other charges of any kind or amount to a labor organization; (iv) pay to any charity or other third party, in lieu of such payments any amount equivalent to or a pro-rata portion of dues, fees, assessments or other charges regularly required of members of a labor organization; or (v) be recommended, approved, referred or cleared through a labor organization.

Supplemental Brief on Rehearing en Banc (NLRB) at 4. The ordinance prohibits employers and unions from entering into agreements requiring employees to maintain membership in or pay dues to a union, called union security agreements. The Pueblo's lease with the lumber company similarly provides:

Lessee will not enter into any contract or other arrangement which would require a Tribal member to be a member of a union, league, guild, club, or association (hereinafter collectively referred to as "union") in order to be entitled to all of the priorities to be accorded him pursuant to this Property Lease. Tribal members will not be required to join or maintain membership in, or pay any dues or assessments to, any union in order to be hired and benefit from the priorities stated in this Lease.

Brief on Appeal for the NLRB, at 5. The "priorities" mentioned in the lease refer to terms of employment for employees who are tribal members. Id. at 5 n.3.

On January 12, 1998, the NLRB filed the instant suit in the United States District Court for the District of New Mexico by its Complaint for Preliminary and Permanent Injunction and for a Declaratory Judgment, alleging that the ordinance and lease provisions, insofar as they prohibit compliance with union-security agreements, are preempted by federal law. Specifically, the Board argued that these provisions are invalid under the Supremacy Clause of the United States Constitution, art. VI, cl. 2,¹ due to preemption by

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the National Labor Relations Act, 29 U.S.C. 151, et seq. (hereinafter the NLRA). Leave to intervene was granted to the Union upon the parties' stipulation.

The district court issued a Memorandum Opinion and Order on November 30, 1998, granting the Pueblo's motion for summary judgment and denying such motions of the NLRB and the Union. NLRB v. Pueblo of San Juan, 30 F. Supp. 2d 1348. On appeal, a divided panel affirmed the district court's decision. We granted petitions of the NLRB and the Union for rehearing en banc which we have held. We now affirm the district court's decision.

II A

The Pueblo's sovereign authority to regulate labor relations and inherent limitations on that authority

The central question before us is whether, in light of the United States Constitution's Supremacy Clause, and Congress' plenary power over Indian affairs,² the NLRA prevents the Pueblo from enacting a "right-to-work law" or entering into a lease with provisions making prohibitions similar to those in right-to-work laws.³ We believe the question of the validity of the lease provisions here is subsumed within the larger question of the validity of the ordinance. Because this is a question of law, we review the district court's order de novo. Mt. Olivet Cemetery Ass'n v. Salt Lake City, 164 F.3d 480, 486 (10th Cir. 1998). The burden falls on the NLRB and the Union, as plaintiffs attacking the exercise of sovereign tribal power, "to show that it has been modified, conditioned or divested by Congressional action." Southland Royalty Co. v. Navajo Tribe, 715 F.2d 486, 488 (10th Cir. 1983). As noted in Southland Royalty, "'[a]mbiguities in federal law have been construed generously in order to comport with . . . tribal notions of sovereignty and with the federal policy of encouraging tribal independence.'" Id. at 490.

In their challenges to the district court's decision and our panel's ruling, the NLRB and the Union argue that 8 (a) (3) of the National Labor Relations Act, 29 U.S.C. 158 (a) (3), clearly protects the rights of a union and an employer to enter into union security agreements meeting the requirements of 8 (a) (3). Moreover the NLRB and the Union maintain that Congress intended by the force of the Wagner and Taft-Hartley Acts to preempt state and local regulation of union security clauses with the narrow exception of 14 (b), 29 U.S.C. 164 (b), allowing only states or

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territories to prohibit otherwise permitted union shop provisions. Appellant's Opening Brief at 9-10. We disagree and instead are convinced by the Pueblo's argument that, as an Indian tribe, it retains the sovereign power to enact its right-to-work ordinance, and to enter into the lease agreement with right-to-work provisions, because Congress has not made a clear retrenchment of such tribal power as is required to do so validly.

We begin by noting what the district court also took pains to point out, namely, that the general applicability of federal labor law is not at issue. NLRB v. San Juan Pueblo, 30 F. Supp 2d at 1351. Furthermore, the Pueblo does not challenge the supremacy of federal law. The ordinance, as amended, does not attempt to nullify the NLRA or any other provision of federal law. The suggestion that tribes, including those that have already enacted right-to-work laws,⁴ might "enact ordinances allowing precisely what generally applicable federal law prohibits"⁵ finds no support in this record. Furthermore, there is no danger that the Pueblo and the State of New Mexico might enact conflicting laws, since state right-to-work laws are of no effect in federal enclaves such as Indian reservations, see Lord v. Local Union No. 2088, IBEW, 646 F.2d 1057, 1062 (5th Cir. 1981) (finding state right-to-work law inapplicable in federal enclave in spite of 14 (b) of the NLRA), cert. denied, 458 U.S. 1106 (1982); New Mexico Fed'n of Labor v. City of Clovis, 735 F. Supp. 999, 1002-03 (D.N.M. 1990) (indirectly noting the inapplicability...