April 20, 2018

Union election at Foxwoods as CT tribes push back against federal labor laws

HBJ File Photo
HBJ File Photo
Foxwoods Resort Casino in Mashantucket.

More than 300 employees who clean the Mashantucket Pequot tribe's Foxwoods Resort Casino will decide on Friday if they want to unionize and reject tribal arguments against that idea.

The vote on unionizing is the culmination of a long campaign for Boston-based Unite Here New England Joint Board. "We've been organizing for more than a year," said Ethan Snow, Unite Here political director.

If the janitors and other cleaners vote to join the union, as Snow expects, they will join other Foxwoods casino workers represented by unions, including dealers, bartenders and beverage servers, skilled mechanics and slot technicians. The tribal fire department also is represented by a union.

In Connecticut's other Indian-run casino, the Mohegan Sun, attempts at unionization have faltered, including a 2012 attempt by the United Auto Workers to organize more than 1,500 casino dealers.

"Workers declined the opportunity. That means our relationship (with workers) is working," said Charles Bunnell, a spokesman for the Mohegan tribe.

To Karen Rosenberg, the international representative for the UAW, "the workers at the Mohegan Sun were not ready to join a union."

"The Mohegan Sun discouraged them from unionization and was successful," Rosenberg said.

Although the Mashantucket Pequots and the Mohegans have had different experiences with organized labor, both tribes suffered an unexpected loss this week when the Senate blocked a bill that would make it much harder to unionize their workers.

The Tribal Labor Sovereignty Act would have exempted enterprises owned and operated by Native American tribes from federal labor standards. Employees who are members of a tribe as well as those who aren't would lose federal protection from being fired for trying to organize a union or collectively protesting work conditions.

No Connecticut lawmaker voted for it, but the Tribal Labor Sovereignty Act easily passed the U.S. House in January on a 239-173 vote. In the Senate on Monday, however, a package of bills containing the sovereignty act fell five votes short of the 60 needed to overcome a filibuster. Like Connecticut's House members, the state's U.S. senators opposed the legislation.

Its supporters say they will try again to bring up the bill, a priority for the nation's Indian tribes.

"I am disappointed this legislation did not advance tonight because 40 Democrats obstructed the bill, said bill sponsor Sen. Roger Wicker, R-Miss., on Monday. "I will continue to work with my colleagues and the more than 160 Indian tribes, tribal corporations, and tribal trade associations to fight for the autonomy of tribal governments."

The bill was prompted by a National Labor Relations Board (NLRB) decision in 2004 involving the San Manuel Indians that said federal labor law did not violate a tribe's autonomy as long as it did not interfere with tribal self-government or violate treaty rights.

"Running a commercial business is not an expression of sovereignty in the same way that running a tribal court system is," the board concluded. "The tribe's operation of the casino is not an exercise of self-governance."

Tribes argue they shouldn't be treated differently from state and municipal workers, who aren't covered by federal labor law.

"The San Manuel decision was not only a complete reversal of the NLRB's recognition of tribes as sovereigns, it is also an affront to Indian Country," said the Mashantucket Pequots in a statement of support for the Tribal Labor Sovereignty Act.

The Mohegans also supported the bill.

"It's a recognition of tribal governments as sovereign," Bunnell said. "Tribes right now are the only governments that aren't treated equally."

Unions used tribal labor law

Although no union represents any of the 5,500 Mohegan Sun employees, the Mohegans and Mashantucket Pequots have agreed to a "neutrality agreement" concerning a third casino they hope to jointly operate in the state.

Sought by unions, neutrality agreements secure commitments from businesses to remain neutral during attempts to unionize their workers.

There are other indications of cooperation between organized labor and the tribes.

In both the successful attempts to unionize workers at Foxwoods and the unsuccessful attempt to unionize dealers at Mohegan Sun, labor unions used the tribal processes to organize.

Snow of Unite Here, a labor union that represents about 10,000 casino employees in New England and New York, said "it seemed to make much more sense" to follow tribal process than to organize under federal labor law. But Snow also said, "We could have gone outside the process."

If the Tribal Labor Sovereignty Act were to become law, unions like Unite Here won't have that alternative.

Rosenberg of the UAW said the NLRB ruling that said casino employees are protected by federal labor law was key to its organization of Foxwoods dealers in 2007.

The UAW said it first held a unionizing vote under the NLRB's laws, but the Mashantucket Pequot tribe did not accept the results.

However, the fact that federal labor law allowed for organizing in the casino eventually prodded the tribe to negotiate procedures with the UAW that opened the door for that union, and others, to represent casino workers.

One provision of the agreement requires more than 30 percent of the workers who would organize to petition for union representation.

"I think it's very clear that the Mashatucket Pequots would not have recognized and agreed to negotiate with us without that NLRB election," Rosenberg said.

The tribe did not respond to various requests to discuss the issue.

But in 2015 congressional testimony in support of the Tribal Labor Sovereignty Act, Mashantucket Pequot Tribal Chairman Rodney Butler said the NLRN had asserted jurisdiction over the tribe "in its wrongly-decided San Manuel standards."

"At that point, our tribal council had to make a decision: Pursue this issue in the courts, which would have led to years of distracting and hurtful litigation, or work with the UAW to help them understand how they could organize and protect collective employee rights under our tribal labor laws," Butler said. "Our government decided to reach out to the UAW… and encourage the use of tribal law to reach a solution that respected both tribal sovereignty and workers' rights to organize."

But Rosenberg said that if the Tribal Labor Sovereignty Act were ever to become law, "it would be extremely difficult to unionize and collectively bargain."

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