Undercover bill excluding Native American tribes from NLRA coverage clears House (1)
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Tuesday, January 16, 2018

Undercover bill excluding Native American tribes from NLRA coverage clears House

By Pamela Wolf, J.D.

A very controversial measure has made its way through the House—mostly undercover. House Education and the Workforce Committee Ranking Member Bobby Scott (D-Va.) voiced his strong disapproval of the passage of S. 140 on January 10. Hidden in the package of non-controversial tribal water supply and lands legislation was what Scott called the “poison pill H.R. 986,” the so-called “Tribal Labor Sovereignty Act.” H.R. 986 would amend the National Labor Relations Act to exclude Native American tribes, and tribal enterprises and institutions on tribal land, from requirements for employers under the NLRA. S. 140 passed the House by a 239-173 vote.

Non-germane provision with huge impact. Speaking on the House floor, Scott said: “As has been pointed out, buried in section 3 of this otherwise noncontroversial water and lands bill is the text of H.R. 986, the Tribal Labor Sovereignty Act. This non-germane provision would strip thousands of employees of their rights and protections under the National Labor Relations Act at Tribal enterprises located on Tribal lands.

“At issue in the Tribal Labor Sovereignty Act are two solemn and deeply rooted principles: First, the right that Indian Tribes possess in matters of local self-governance; second, the rights of workers to organize unions, bargain collectively, and engage in concerted activities for mutual aid and protection.”

According to Scott, the bill “chooses sovereignty for some over the human rights of others.” He pointed out that about 75 percent of workers employed at Tribal casinos are not members of the Tribes running the casino. Nonetheless, the bill “would strip labor rights of hundreds of thousands of these workers as well as those who are actually members of the Tribes.”

Scott also noted that longstanding legal precedent has applied employment laws to tribal commercial enterprises, including the FLSA, the OSH Act, and ERISA. This legislation, however, singles out only the NLRA. “There is no principled basis for excluding hundreds of thousands of workers from coverage under our nation’s labor laws just because they work in commercial enterprises on tribal lands,” according to Scott.

Poison pill move. Also speaking on the House Floor, Representative Raul Grijalva (D-Ariz.) attacked the method used to get the Tribal Labor Sovereignty Act passed, saying, “This bill package is just the latest attempt by my Republican colleagues to push a highly partisan agenda by combining that divisive proposal with noncontroversial items.”

Controversial bill. The Tribal Labor Sovereignty Act has a storied history, including President Obama’s warning that he would not sign the 2015 version of the bill. Obama did, however, indicate support for a measure “which recognizes tribal sovereignty in formulating labor relations law and exempts tribes from the jurisdiction of the National Labor Relations Board only if the tribes adopt labor standards and procedures applicable to tribally-owned and operated commercial enterprises reasonably equivalent to those in the National Labor Relations Act.”

In March 2017, the House Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions held a hearing on the Tribal Labor Sovereignty Act of 2017. Three of the four invited witnesses at the hearing supported the measure, in good part because of the parity it would give Indian tribes with federal, state, and local governments, which are excluded from the NLRA’s prohibitions and protections. The one witness who opposed the legislation, however, pointed out that as many as 75 percent of tribal gaming workers are non-Indian, and an additional 10 percent are not members of the gaming enterprise’s owner-tribe, calling into question the “parity” argument.

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