NLRB v. Pueblo of San Juan, Nos. 99-2011

• Decision Date: 26 September 2000
• Docket Number: 99-2030,Nos. 99-2011
• Citation: 228 F.3d 1195
• Parties: (10th Cir. 2000) 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
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1195

228 F.3d 1195 (10th Cir. 2000)

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.

Nos. 99-2011, 99-2030

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 26, 2000.

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

Nancy E. Kessler Platt of National Labor Relations Board, Washington, D.C. (Frederick L. Feinstein, Linda Sher, Margery E. Lieber and Eric G. Moskowitz with her on the brief) for Plaintiff-Appellant.

Michael T. Garone of Jolles, Bernstein & Garone, Portland, Oregon (Morton S. Simon of Simon, Oppenheimer & Ortiz, Santa Fe, New Mexico, with him on the brief) for Intervenor-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 & Frye, Albuquerque, New Mexico for Defendant-Appellee.

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 MURPHY and HOLLOWAY, Circuit Judges, and COOK, District Judge.^*

COOK, District Judge.

In this case we are called upon to decide whether the Pueblo of San Juan ("Pueblo"), a federally recognized Indian tribal government, has the authority to enact and enforce a right-to-work tribal ordinance prohibiting union security agreements for companies engaged in commercial activity on tribal lands. The National Labor Relations Board ("NLRB") and Local Union No. 1385, Western Council of Industrial Workers ("Union") seek review of the order entered by the district court which granted summary judgment in favor of the Pueblo. The district court upheld the Pueblo's right-to-work ordinance as a valid exercise of the Pueblo's sovereign governmental authority over commercial activity on tribal lands in light of the statute's provision which permits state and territorial governments to regulate union security agreements. On appeal, the NLRB and the Union claim that the Pueblo's enactment of the right-to-work ordinance and the inclusion of the provision within a lease, violates the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 to 169.

I. Background

The relevant and material facts are undisputed. As a federally recognized Indian tribal government, the Pueblo is governed by a tribal council, which is vested with legislative authority over tribal lands. The Pueblo has 5,200 members, most of whom live on tribal lands that are held in trust by the United States for the Pueblo. Through federally-approved leases, the Pueblo rents certain portions of its tribal land to a non-tribal business as a source of generating tribal income and as a means of employment for tribal members.

For 27 years prior to August 1996, Duke City Lumber Company ("Duke City") owned and operated a sawmill on the Pueblo Indian Reservation. Duke City leased the land used for its operations from the Pueblo pursuant to a lease approved by the Department of the Interior. Duke City operated under a collective bargaining agreement with the Union which contained a union security clause that required all bargaining unit employees to become and remain members of the union and pay union dues. For 27 years the Pueblo did not object to the collective bargaining agreement.

On August 21, 1996, Duke City sold the sawmill and related assets to Idaho Timber Company for use by Idaho Timber's subsidiary, Rio Grande Forest Products Industry ("Rio Grande"). The Pueblo agreed to release Duke City from its obligation under the lease in exchange for a commitment by Idaho Timber to enter into a new lease. The Department of the Interior approved this arrangement. The Pueblo and Idaho Timber negotiated a new lease containing a preferential employment hiring provision for Pueblo members and a provision forbidding Rio Grande from entering into a collective bargaining agreement requiring Pueblo employees to become union members before they could obtain the benefits of the employment preference.¹ The Department of the Interior approved the lease.² Rio Grande hired approximately 80 employees, 28 of whom are Pueblo members. After the lease was executed, the Union demanded that Rio Grande enter into a collective bargaining agreement with it as the exclusive bargaining agent for employees. Rio Grande was unwilling to recognize the Union.

On November 6, 1996, in response to the Union filing an unfair labor practice charge with the NLRB, the tribal council enacted Labor Organization Ordinance No. 96-63 ("ordinance"). ³ The ordinance expanded the scope of the lease provision by affording to all employees on tribal lands the freedom of choice regarding union membership, not just employees who are Pueblo members. The Pueblo's right-to-work ordinance relates only to compulsive membership; it does not prohibit employees from voluntarily joining a union or from voluntarily organizing or participating in union activities on tribal lands. To settle the unfair practice charge, the Union and Rio Grande entered into a collective bargaining agreement, but conditioned its effectiveness on a federal court determining the validity of its right-to-work ordinance.

The NLRB filed the action below seeking declaratory and injunctive relief, and the Union intervened. The NLRB and the Union separately appealed summary judgment rendered in favor of the Pueblo. The appeals were consolidated. On appeal the Pueblo asserts that the ordinance is a valid exercise of its inherent right to self-government. The NLRB and the Union argue that the NLRA preempts tribal law.

The district court found that the text of the NLRA and the legislative history of the statute did not mention or discuss Indian tribes. NLRB v. Pueblo of San Juan, 30 F. Supp. 2d 1348, 1353 (D.N.M. 1998) (citing Sac & Fox Indus. Ltd., 307 N.L.R.B. 241, 243 (1992)). The district court relied on Supreme Court precedent which demonstrates that tribal sovereign authority may be abridged only by a clear indication to that effect in the language or legislative history of a statute, or by federal preemption of the entire subject area. Mere silence regarding Indian tribes is insufficient to establish an abrogation of traditional sovereign authority. Pueblo of San Juan, 30 F. Supp. 2d at 1351 (citing Iowa Mutual Ins. v. LaPlante, 480 U.S. 9, 17-18 (1987)).

The district court also relied on Supreme Court authority that federal law does not preempt regulation of contracts which require union membership as a condition of employment. Id. at 1352 (citing Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Bd., 336 U.S. 301, 307 (1949)). The district court rationalized that tribes are not the equivalent of states or territories and are nothing akin to municipal government, which derive all of their authority from the states. Id. at 1353 (citing Kerr-McGee v. Farley, 915 F. Supp. 273, 276 (D.N.M. 1995) aff'd 115 F.3d 1498 ( 10th Cir. 1997)). The lower court determined Indian tribes and the federal government are dual sovereigns and occupy a unique status under the law, Id. (citing National Union Ins. Co., Lodge Grass School Dist. No. 27 v. Crow Tribe, 471 U.S. 845 (1985)), and because of this unique relationship, Indian tribal sovereignty cannot be abrogated as easily. Id.

The lower court stated that section 14(b) of the NLRA demonstrates that Congress did not intend for federal policy to be exclusive or uniform in the area of union security agreements and that any ambiguities in federal law should be construed to comport with the federal policy of encouraging tribal independence. Id. at 1355 (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44 (1980)). The district court concluded by holding:

Given the explicit Congressional statement in § 14 (b) that federal policy shall not be exclusive in this area, Supreme Court holdings that federal law does not preempt state regulation of contracts requiring union membership, and Congressional silence as to the status of Indian tribes under the NLRA, this Court concludes that tribes retain the authority to enact laws which prohibit requiring union membership as a condition of employment.

Pueblo of San Juan, 30 F. Supp. 2d at 1355. We have jurisdiction under 28 U.S.C.§ 1291, and we affirm.

II. Standard of Review

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court under Fed. R. Civ. P. 56(c). Utah v. Babbitt, 53 F.3d 1145, 1148 (10th Cir. 1995). Under this standard, summary judgment is appropriate when the evidence taken as a whole, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The parties have stipulated to the material facts, therefore we need only determine whether the district court correctly applied the substantive law. The issue before us arising under the NLRA apparently is a matter of first impression in any court. We review de novo the district court's interpretation of the federal statute.

III. Discussion

The issue in this case is whether the NLRA preempts an Indian tribe from adopting a right-to-work ordinance applicable to employees of a non-Tribal company engaged in business activities on a reservation.

Appellants argue section 8 (a) (3) of the NLRA, within 29 U.S.C. § 158 (a) (3) protects the right of a union and employer to enter into a union security agreement except for the limitation of section 14 (b), within 29 U.S.C. § 164 (b), which allows only states and territories to prohibit the otherwise allowable union shop provisions.

Section 8(a)(3) provides:

Nothing in this subchapter or in any other statute of the United States shall preclude an...