GM 13-044

National Labor Relations Board Rules against Soaring Eagle Casino and Resort; House Passes NLRB Legislation; Senate Committee Approves NLRB Nominations

Since our March report on the National Labor Relations Board (NLRB) decision in the Little River Band of Ottawa Indians and Teamsters case, the NLRB has issued yet another ruling unfavorable to tribes. On April 16, the NLRB affirmed the decision of the regional NLRB Administrative Law Judge in Soaring Eagle Casino and Resort and UAW, Case 07–CA–053586, ruling in favor of the union and against the Saginaw Chippewa Tribe’s anti-organization rules. The ruling takes another close look at San Manuel and reaffirms its central premise. This is the second ruling this year reaffirming NLRB jurisdiction over tribal casinos. The Little River Band decision focused on a tribe’s attempt to preempt the National Labor Relations Act (NLRA) by enacting a tribal relations statute. The new Soaring Eagle decision focuses on a tribe’s firing of an employee for trying to organize a union. The Casino was ordered to rehire the employee with back pay and also to post notices explaining that employees have the right to form a union.

Both Tribes are in the process of appealing the unfavorable decisions to the U.S. Sixth Circuit Court of Appeals.

As previously reported, there are pending legislative measures to prohibit the NLRB from acting until a full Board is seated, the Supreme Court rules on the constitutionality of the appointees, or Board member terms expire upon adjournment of this session of the 113th Congress. One such bill, HR 1120, the Preventing Greater Uncertainty in Labor-Management Relations Act, was passed by the House on April 12 by a vote of 219-209. HR 1120 is sponsored by Representative Kline (R-MN); the accompanying committee report is H.Rept. 113-30. Senator Lamar Alexander (R-TN) introduced a companion measure (S 850) on April 25. It is unlikely the Senate will consider HR 1120 and the White House has issued a veto threat should Congress pass the bill.

On May 22, 2013, the Senate Health, Education, Labor and Pensions (HELP) Committee approved a full five-member slate of nominees to the NLRB. The nominees included Sharon Block and Richard Griffin, whose recess appointments in January 2012 have been ruled invalid by the U.S. Court of Appeals for the District of Columbia Circuit. The other nominees are Mark Pearce, current Chairman of the NLRB whose term expires in August, Harry Johnson III and Philip Miscimarra. Despite several Republican Committee members’ votes against the Block and Griffin nominations, all five nominations moved forward for full Senate consideration. We understand that a Republican-led filibuster is likely and it could leave the NLRB functionless if the delay persists past the end of Chairman Pearce’s term.

Please let us know if you have questions about the National Labor Relations Board matters reported in this Memorandum.