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Indian Nations Update - March 2010

March 19, 2010

Federal Court Decision Highlights Labor Law Hazards for Tribes
The recent decision of the federal district in N.L.R.B. v. Fortune Bay Resort Casino, 2010 WL 681663 (D. Minn.), illustrates the hazards that the National Labor Relations Act (NLRA) poses for tribal enterprises. Fortune Bay Resort Casino ("Fortune Bay"), a wholly owned and managed entity of the Bois Forte Band of Chippewa Indians ("Band"), operates a hotel, resort and casino on the Band's Reservation pursuant to a tribal gaming ordinance and license issued by the Tribal Council. Fortune Bay employs approximately 450 people, one-third of whom are Indians and about 120 of whom are Band members.

The United Steelworkers Union (the "Union") began efforts to organize Fortune Bay's employees in 2007. The following year, Fortune Bay terminated Farr, a member of the Band, for allegedly failing to report for work, whereupon the Union filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that Farr's termination was really motivated by the Union's organizing activities. The Union withdrew the charge and it appeared Farr would be reinstated. After the offer to reinstate was withdrawn, however, the Union again went to NLRB, this time alleging that the Band violated the NLRA by refusing to reinstate Farr in retaliation for her participation in the previous case before the Board and in retaliation for her union activities.

The NLRB's General Counsel commenced an investigation and served Fortune Bay with a subpoena duces tecum to appear before an agent of the Board and produce certain subpoenaed documents. Consistent with the analytic framework established in the NLRB's 2004 decision in San Manuel Indian Bingo & Casino (San Manuel I), 341 N.L.R.B. 1055, 1056 (2004), the subpoena sought "information relevant to Fortune Bay's effects on commerce, to establish federal jurisdiction, ... to establish attributes of tribal sovereignty, and to establish whether the Board will consider Fortune Bay an 'employer' within the meaning of the NLRA." Fortune Bay objected to the subpoena, arguing that the NLRB lacked jurisdiction over the Tribe and that the Tribe was immune from proceedings initiated by the union, a non-government entity.

The district court rejected the Tribe's objections, holding that (1) the NLRA is a federal law of general applicability, notwithstanding the Tenth Circuit Court of Appeals contrary conclusion in the 2000 decision in N.L.R.B. v. Pueblo of San Juan ("the NLRA by its terms is not a statute of general application, it excludes states and territories," 280 F.3d 1278, 1283 (10th Cir. 2000)), (2) pending further investigation, neither the treaty exception nor the exception for laws touching "exclusive rights of self-governance in purely intramural matters" articulated by the Ninth Circuit in the Coeur d'Alene case could defeat the subpoena, and (3) the Tribe's sovereign immunity could not be interposed against a subpoena sought by an agent of the United States.

The Fortune Bay case illustrates the care that tribal enterprise must exercise in responding to efforts by unions to organize their work forces. The union was able to turn a routine employment decision, normally untouchable by outside authorities, into an occasion for a highly intrusive investigation by a powerful federal agency. Ron Pfeifer of Godfrey & Kahn's Indian Nations Law and Labor and Employment Law Teams has more than 25 years experience advising management on strategies to prevent unionization. Ron has worked with tribal clients to take proactive steps to assure that when union organization efforts begin, the tribal enterprise is well-prepared.

For more information or free consultation, contact Brian Pierson (bpierson@gklaw.com or 414.287.9456).

CLE Conference: Developing Tribal Energy Economies
Arizona State University Sandra Day O'Connor College of Law will host a CLE conference entitled "Tribal Energy Economies: Investing in a Sustainable Future" on March 25 - 26, 2010 in Tempe, AZ. This conference will bring together tribal leaders, financing and energy industry experts, attorneys and academics to chart courses for tribes to increase their leverage now and create sustainable energy economies in the future. It will address the legal, regulatory, developmental and financing opportunities associated with traditional, renewable and alternative energy sources. The conference will examine the challenges of developing long-term energy economies, including the economic and cultural issues associated with large-scale development on tribal lands.

Godfrey & Kahn shareholder John Clancy will speak on maximizing the value of tribal natural resources in the carbon markets of the future.

Godfrey & Kahn shareholder Carl Artman is organizing the conference in conjunction with the College of Law's "Economic Development in Indian Country" program. Further information on the conference may be found at ww.regonline.com/tribalenergy or you may contact Carl Artman at 414.287.9624 or cartman@gklaw.com.

G&K to Present 21st Annual Labor and Employment Law Seminar
Godfrey & Kahn's Labor and Employment Law Team will present its annual seminar on the following dates at the following locations:

  • Tuesday, April 13: Madison (Monona Terrace)
  • Tuesday, April 20: Green Bay (Hotel Sierra)
  • Thursday, April 22: Milwaukee (Sheraton Brookfield)

The seminar will focus on practical approaches to preventing and managing employment law problems. It is further designed to provide employers with information concerning recent changes in labor and employment law and suggested strategies to deal with these changes.

The seminar is designed to serve the needs of executives, in-house counsel, human resource professionals and front-line supervisors. We have applied for 3 recertification credit hours toward PHR, SPHR and GPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit HRCI at www.hrci.org. We have applied for approval by the Board of Bar Examiners for 3 hours of credit toward the Wisconsin mandatory CLE requirements.

To register, or for more information, contact Katelin Botsford at 414.287.9269 or kbotsford@gklaw.com.

 

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