Trying to stop employees’ customer-directed union leafletting on non-work time at tribal casino violated NLRA
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Monday, April 30, 2018

Trying to stop employees’ customer-directed union leafletting on non-work time at tribal casino violated NLRA

By Lorene D. Park, J.D.

After concluding that the NLRB reasonably interpreted the NLRA to apply to tribal employers, the Ninth Circuit granted the Board’s petition for enforcement of its order finding Casino Pauma committed unfair labor practices by threatening termination and taking pictures of employees who were distributing union literature to customers in front of the casino during non-working time. The appeals court agreed with the Board’s interpretation of the Supreme Court’s 1945 decision in Republic Aviation Corp. v. NLRB concerning NLRA Section 7 reaching employees’ customer-directed distribution on non-work time in non-work areas of the employer’s property (Casino Pauma v. NLRB, April 26, 2018, Berzon, M.).

The Pauma Band of Mission Indians owns Casino Pauma, located on a reservation in Pauma Valley, California. About 2,900 customers visit the casino each day, and the casino employs 462 employees. Only five employees are members of the Pauma Band; the parties stipulated that the vast majority of its employees were not members of any Native American tribe.

Casino stops employees from handing out union leaflets. In 2013, UNITE HERE began an organizing drive at the casino. In December, nine casino employees distributed union leaflets to customers while standing on sidewalks outside the casino’s front entrance. Several times during the day, casino security personnel told them that they could not distribute flyers near the valet driveway, directing them instead to the back of the casino, near the employee-only entrance. A guard also took a picture of two leafletting employees. When the employees asked what would happen if they stayed, security said they would be reported to HR, disciplined, and could lose their jobs. The employees stopped distributing leaflets after being told to do so. In January 2014, another casino employee who was on her break handed out union flyers to employees who were waiting in line to clock out at the end of the shift. She was issued a disciplinary warning.

NLRB finds unfair labor practices. The NLRB General Counsel filed several complaints concerning the literature distribution and these went to a three-day trial by an Administrative Law Judge. The ALJ held that the casino violated the NLRA by, among other things, trying to stop union literature distribution in guest areas at the front entrance and in non-working areas near its employees’ time clock. A three-member panel of the Board affirmed.

NLRA is applicable to tribal employers. On appeal, the casino argued that, in light of its status as a tribally owned business operating on tribal land, the Board misinterpreted the NLRA and principles of federal Indian law by adjudicating the unfair labor charges. Disagreeing, the appeals court concluded that while the NLRA is ambiguous in its application to tribal employers, the Board’s determination that such employers are covered by the Act was a “reasonably defensible” interpretation of the NLRA.

The appeals court pointed to the Board’s 2004 decision in San Manuel Indian Bingo and Casino, which summarized the “zigzagging precedents” concerning whether the term “employer” in the NLRA includes tribal employers and found the jurisprudence in this area “inadequate in striking a satisfactory balance between the competing goals of Federal labor policy and the special status of Indian tribes in our society and legal culture.” The San Manuel decision noted that the NLRA’s definition on its face does not expressly exclude Indian tribes; that the Supreme Court has consistently declared that Congress intended to vest the Board the fullest jurisdictional breadth constitutionally possible; and that no historical or other considerations suggested tribes are exempt from the Act. Finding this analysis convincing, the appeals court upheld San Manuel’s determination that tribal employers are subject to the NLRA.

Board’s interpretation not unreasonable. Though the casino and amici pointed to the distinction between private and public employers, and argued that tribes are analogous, the court was not convinced. “Perhaps it would be reasonable to read the NLRA’s exclusions of many public employers to extend to all public employers, including tribes, given the law’s focus on private employment,” said the court, but that did not render unreasonable the Board’s contrary interpretation of the Act’s silence concerning tribes.

Indian law did not change analysis. The court also rejected the casino’s argument that the Board’s reasoning must be trumped by competing principles of federal Indian law. The NLRA is a federal statute of general applicability, explained the appeals court, and its precedent has consistently held that such generally applicable laws may be enforced against tribal enterprises. The court distinguished between tribal enterprises and tribal entities that are engaging in self-government. The casino fell in the first category, and the NLRA’s application to the casino did not affect “purely intramural matters” or the Tribe’s “self-government.” In sum, concluded the court, federal Indian law does not preclude the Board’s application of the NLRA to the casino.

Nor did the labor provisions of the casino’s compact with California under the Indian Gaming Regulatory Act conflict with the NLRA. Though IGRA provides that a state compact may include provisions relating to “the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to… regulation of such activity,” this did not “immunize the operation of Indian commercial gaming enterprises from the application of other generally applicable congressional statutes,” said the court.

NLRB upheld on the merits. Turning to the merits of the unfair labor charge, the appeals court upheld the Board’s ruling that the casino violated the NLRA by disciplining an employee for distributing union literature in a non-working area during non-working time; enforcing a rule prohibiting distribution of literature in “guest areas;” interfering with such distribution; threatening to discipline employees who distributed the literature in these areas; and photographing employees who distributed the literature.

Employees are allowed to seek public support. Though the casino argued that the Board misapplied the NLRA in determining that its employees had a Section 7 right to distribute literature to patrons on its front driveway, the appeals court pointed out that “Section 7 has long been understood to protect as concerted activity appeals to the public for support of employees’ workplace controversies.”

No unreasonable restraint on non-work time in non-work areas. As to location, Republic Aviation approved a Board baseline rule for the location of workplace union solicitation and literature distribution protected by Section 7. Basically, the time outside work, whether before or after work, during lunch or rest periods, is an employee’s time to use as he wishes without unreasonable restraint, even on company property. The appeals court could not find, and the parties did not raise, any reason to require the Board to treat protected solicitation differently as to location or timing based on the intended audience.

With that in mind, and noting the Supreme Court has found the employment site a “particularly appropriate place for the distribution of § 7 material,” the court concluded that the Board reasonably interpreted and applied Republic Aviation in finding that the casino violated its employees’ NLRA right to distribute union literature in non-working space on non-work time.

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