In several of our previous General Memoranda, we have reported on three cases involving union efforts to organize workers at Indian casinos: Chickasaw Nation v. NLRB; Saginaw Chippewa Indian Tribe of Michigan v. NLRB; and Little River Band of Ottawa Indians v. NLRB. Following the U.S. Supreme Court’s Noel Canning decision, which invalidated President Obama’s 2012 recess appointments of three members to the National Labor Relations Board (NLRB), the NLRB asked the federal courts of appeals to vacate and remand those three cases back to the NLRB. (See our General Memorandum 14-059 of August 1, 2014.) Since our last report, all three cases have now been remanded to the NLRB.
On August 6, 2014, the Sixth Circuit Court of Appeals agreed to the NLRB’s request to vacate and remand the Saginaw Chippewa case, over the Tribe’s objections. The Tribe had asked the court to remand but still retain jurisdiction, so that the NLRB would have to reconsider the matter in 90 days and so the same judges would remain in place. On August 13, 2014, the Sixth Circuit Court of Appeals also vacated and remanded the Little River Band case. The Court stated in its order:
We note that this controversy has been pending for several years, that a question of unsettled law is presented, and that the panel expended significant resources in considering this case, although a decision has not been rendered. Accordingly, the Clerk of the Court is directed to issue the mandate expeditiously, and we expect that the NLRB will also proceed expeditiously on remand.
The Tenth Circuit Court of Appeals had already vacated and remanded the Chickasaw Nation v NLRB case back to the NLRB on July 22, 2014.
In all three of these tribal cases, the NLRB previously issued rulings that it has jurisdiction to hear unfair labor practices allegations because it determined that the National Labor Relations Act applies to the commercial activities of Indian tribes. Since those rulings are no longer valid due to the Noel Canning decision, we expect the NLRB will re-issue similar decisions in all three cases, which the tribes will undoubtedly appeal back to the respective courts of appeal. The NLRB has committed to expedited review of the Chickasaw Nation proceeding, and we are hopeful it will do so for the other two cases.
We will continue to update you on developments in these important cases and their implications for labor practices in Indian Country.
