Pauma v. Nat'l Labor Relations Bd., No. 16-70397

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: BERZON, Circuit Judge
• Citation: 888 F.3d 1066
• Parties: Casino PAUMA, an Enterprise of the Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation, a federally recognized Indian Tribe, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Unite Here International Union, Intervenor. National Labor Relations Board, Petitioner, v. Casino Pauma, an Enterprise of the Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation, a federally recognized Indian Tribe, Respondent.
• Docket Number: No. 16-70756,No. 16-70397
• Decision Date: 26 April 2018

888 F.3d 1066

Casino PAUMA, an Enterprise of the Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation, a federally recognized Indian Tribe, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,

Unite Here International Union, Intervenor.

National Labor Relations Board, Petitioner,
v.
Casino Pauma, an Enterprise of the Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation, a federally recognized Indian Tribe, Respondent.

No. 16-70397
No. 16-70756

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 9, 2017, Pasadena, California
Filed April 26, 2018

Cheryl Ann Williams (argued) and Kevin M. Cochrane, Williams & Cochrane LLP, Temecula, California, for Petitioner.

Heather Stacy Beard (argued), National Labor Relations Board, Washington, D.C.; Kristin L. Martin (argued) and Richard G. McCracken, McCracken Stemerman & Holsberry LLP, San Francisco, California; for Intervenor.

Linda Dreeben, Deputy Associate General Counsel; John H. Ferguson, Associate General Counsel; Jennifer Abruzzo, Deputy General Counsel; Richard F. Griffin Jr., General Counsel; Heather S. Beard, Attorney; Jill A. Griffin, Supervisory Attorney; National Labor Relations Board, Washington, D.C.; for Respondent.

Lloyd B. Miller and Rebecca A. Patterson, Sonosky Chambers Sachse Miller & Munson LLP, Anchorage, Alaska; Frank S. Holleman, Sonosky Chambers Sachse Endreson & Perry LLP, Washington, D.C.; for Amici Curiae Fort Peck Assiniboine and Sioux Tribes, Port Gamble S'Klallam Tribe, Puyallup Tribe, and Quinault Indian Nation.

Dorothy Alther and Mark Radoff, California Indian Legal Services, Escondido, California; Denise Turner Walsh, Attorney General, Rincon Band of Luiseño Indians, Valley Center, California; for Amici Curiae California Nations Indian Gaming Association, Southern California Tribal Chairmen's Association, California Association of Tribal Governments, and Rincon Band of Luiseño Indians.

Before: Richard Linn,^* Marsha S. Berzon, and Paul J. Watford, Circuit Judges.

BERZON, Circuit Judge:

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We consider whether the National Labor Relations Board ("NLRB" or "the Board") may regulate the relationship between employees working in commercial gaming establishments on tribal land and the tribal governments that own and manage those establishments. After addressing various preclusion questions, we uphold the Board's conclusion that it may apply the National Labor Relations Act ("NLRA") to that relationship, in accord with its usual process. We also consider whether the Board permissibly applied the rule regarding employee solicitation established in Republic Aviation Corp. v. N.L.R.B. , 324 U.S. 793, 798, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), to customer-directed union literature distribution, and we hold that it did.

I.

The Pauma Band of Mission Indians ("Pauma Band" or "Tribe") owns Casino Pauma, located on the Tribe's reservation in Pauma Valley, California. About 2,900 customers visit Casino Pauma each day. The Casino employs 462 employees, five of whom are members of the Pauma Band; the parties stipulated that "[t]he vast majority of [Casino Pauma's] employees and managers are not members of any Native American Tribe."

In 2013, UNITE HERE ("Union") began an organizing drive at Casino Pauma. Over the course of a day in December 2013, nine Casino Pauma employees distributed

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Union leaflets to customers at the casino's front entrance. Some of the employees stood on the sidewalk at the entrance to the casino's valet driveway, and some at the exit, all facing the casino's customer parking lot. Several times during the day security personnel for Casino Pauma told the employees that they could not distribute flyers near the valet driveway, directing them instead to distribute flyers at the back of the casino, near the employee-only entrance. When the leafleting employees asked what would happen if they stayed at the valet entrance, the security employees told them they would be reported to human resources and disciplined, and that they could potentially lose their jobs. Each group of employees stopped distributing leaflets after being told to do so. In the afternoon, a security guard took a picture of two leafleting employees.

The next month, in January 2014, another Casino Pauma employee handed out Union flyers to several employees waiting to clock out at the end of their shifts. The time clock was located in a hallway near the employee cafeteria. The leafleting employee was on her break. The three employees to whom she gave flyers had not yet clocked out for the end of their shift, but were standing in line to do so; all three clocked out within "about 30 seconds" of receiving the flyers. In March, Casino Pauma issued the leafleting employee a disciplinary warning for distributing the flyers.

The General Counsel of the NLRB filed several complaints concerning the literature distribution incidents.¹ The complaints were consolidated, and an Administrative Law Judge ("ALJ") presided over a three-day trial. The ALJ held that Casino Pauma violated the National Labor Relations Act, 29 U.S.C. § 151 et seq. , in most of the ways the General Counsel alleged—in particular, it committed unfair labor practices by trying to stop union literature distribution in guest areas at the casino's front entrance and in non-working areas near its employees' time clock. A three-member panel of the Board affirmed the ALJ's rulings and findings and adopted a slightly modified version of the ALJ's order. Casino Pauma (Casino Pauma II ), 363 N.L.R.B. No. 60 (Dec. 3, 2015).

In so doing, the Board relied on a jurisdictional finding involving the same parties it had made earlier that year in Casino Pauma (Casino Pauma I ), 362 N.L.R.B. No. 52 (Mar. 31, 2015), a Board decision from which neither party sought judicial review. In Casino Pauma I , which concerned other unfair labor practices that took place at the same casino in April 2013, the Board rejected Casino Pauma's argument that it was a government entity not subject to the NLRA. Id. at 1 n.3; 3–4. Although Casino Pauma renewed this argument in Casino Pauma II , the case now before this panel, the Board held that "the doctrine of issue preclusion ... forecloses the Respondent from arguing that the

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Board lacks jurisdiction." Casino Pauma II , 363 N.L.R.B. No. 60 at 1 n.1.

After the Board issued its decision in Casino Pauma II , it timely petitioned this court for enforcement of its order, 29 U.S.C. § 160(e), and Casino Pauma filed a separate petition for review, 29 U.S.C. § 160(f). We consolidated the two petitions. UNITE HERE intervened in opposition to Casino Pauma. See Int'l Union, United Auto., Aerospace & Agric. Implement Workers, Local 283 v. Scofield , 382 U.S. 205, 208, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965).

II.

Casino Pauma argues that the Board misinterpreted the NLRA and principles of federal Indian law by adjudicating unfair labor charges against it in light of its status as a tribally-owned business operating on tribal land. Before addressing this argument, we consider whether Casino Pauma is precluded from making it.²

The Union, but not the Board, contends that Casino Pauma is issue-precluded from arguing before us that it may not be regulated by the Board under the NLRA. The Union notes that the issue was resolved by the NLRB in a previous decision, Casino Pauma I , and that the Casino did not seek judicial review of that decision.

The Union is correct that collateral estoppel, also known as issue preclusion, "is not limited to those situations in which the same issue is before two courts . Rather, where a single issue is before a court and an administrative agency, preclusion also often applies." B & B Hardware v. Hargis Indus. , ––– U.S. ––––, 135 S.Ct. 1293, 1303, 191 L.Ed.2d 222 (2015). Generally speaking, so long as "an administrative agency is acting in a judicial capacity and resolv[ing] disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate," United States v. Utah Const. & Mining Co. , 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966), "the federal common law rules of preclusion ... extend to ... administrative adjudications of legal as well as factual issues, even if unreviewed," Guild Wineries & Distilleries v. Whitehall Co. , 853 F.2d 755, 758–59 (9th Cir. 1988). Further, this court has held that preclusion "doctrines apply to administrative determinations ... of the [National Labor Relations] Board." Bldg.Materials & Constr. Teamsters v. Granite Rock Co. , 851 F.2d 1190, 1195 (9th Cir. 1988) ; see Granite Rock Co. v. Int'l Bhd. of Teamsters , 649 F.3d 1067, 1070 (9th Cir. 2011) ; Paramount Transp. Systems v. Chauffeurs, Teamsters & Helpers, Local 150 , 436 F.2d 1064, 1065–66 (9th Cir. 1971).

In considering the issue-preclusive effect of NLRB rulings, we have not before addressed the proposition, put forth by the Board at oral argument in explanation of its omission of a preclusion argument from its briefing in this court, that preclusion doctrines do not apply to Board orders as to which the Board has declined to seek judicial enforcement. There may...