Mashantucket appeals NLRB union decision
MASHANTUCKET, Conn. - The Mashantucket Pequot Tribal Nation has taken the next step in the struggle to maintain tribal sovereignty over gaming at Indian casinos.
The nation has appealed National Labor Relations Board Administrative Law Judge Raymond Green;s March 11 decision to uphold a United Auto Workers election, held Nov. 24 at Foxwoods Resort Casino, in which dealers voted 1,289 - 852 to unionize under federal labor law rather than tribal labor law.
The 37-page appeal was filed March 25 with the NLRB in Washington.
The UAW had rejected the tribal nation's request prior to the vote to file the petition under tribal labor law.
Although the appeal deals largely with procedural issues, the tribal nation said it is reserving its right to continue to challenge the NLRB's assertion that it has jurisdiction over gaming on sovereign tribal land, an issue that the board dismissed on several occasions. The case has national implications and is being closely monitored by tribes and unions.
''It is no small understatement to note that the Board's decision to, in certain cases, assert jurisdiction over some Native American enterprises has not been well-received by Native American Tribes. The actions and decisions of the Regional Director and Administrative Law Judge in this case also send the unconscionable message that Tribes cannot even expect to receive the same due process as other entities,'' the nation's three attorneys, from the Atlanta-based firm of Kilpatrick Stockton LLP, wrote.
Mashantucket filed 12 objections following the union vote. Two of the objections claiming sovereign authority and immunity were tossed out by the labor board. The remaining 10 objections concern procedural violations and misconduct by union representatives.
The tribal nation claimed that the board broke the rules by printing ballots only in English, and an election notice only in one Chinese language rather than the two Chinese languages - Cantonese and Mandarin - spoken by 700 dealers at the casino.
''The undisputed evidence at the hearing demonstrated that the cost of translation would have been minimal (in fact, it is undisputed that the cost would have been about $12), and there would have been no delay whatsoever involved in translating the ballots and notices,'' the appeal says.
The tribe also claimed that UAW representatives harassed and intimated voters before the election.
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Green's decision to reject the tribe's claims came after hearing seven days of testimony in January. It was enthusiastically received by the dealers.
''We are thrilled that Judge Green affirmed that our election was a free and fair measure of the will of the dealers,'' Denise Gladue, a dual-rate dealer in table games, said in a press release issued by the UAW. ''We have won every ruling and we won our election by a decisive margin. We have waited long enough. Management needs to respect our majority, recognize our union and negotiate a fair contract.''
The vote, however, cannot be certified until all appeals are exhausted, and nation Chairman Michael Thomas has promised to take the jurisdictional issue to the highest courts.
The latest appeal claims, among other things, that Foxwoods was treated differently than ''every other employer in the region''; that the board asserted that Chinese-language ballots were unnecessary despite undisputed evidence to the contrary from both the union and Foxwoods; that the NLRB's Case-Handling Manual was disregarded; that the board tried to shift its obligation to ensure fair elections to Foxwoods, imposing ''an impossible burden of proof'' on the gaming enterprise; and ignored case law on the subject of multilingual ballots.
''The National Labor Relations Board can and must do better than this,'' the attorneys wrote.
The appeal reiterates uncontested testimony from the hearing that many of the Chinese dealers at Foxwoods have significant difficulty communicating in English and that they routinely require assistance in reading and communicating in English. It quotes employees who testified that they did not understand the implications of voting ''yes'' or ''no'' on the ballot.
''Though the [administrative law judge] stated that he placed little reliance on 'generalized testimony' regarding dealers' language abilities, he essentially dismisses the specific testimony of individual dealers as well,'' the appeal says.
The dealers are eager to move forward on collective bargaining.
''Management has more to lose than to gain by continuing to drag this out in the courts. It is time for management to come to the bargaining table,'' said Jack Edwards, a dealer who has worked at Foxwoods for almost 12 years, according to the UAW press release.
However, the NLRB was scheduled to begin a hearing investigating 35 alleged unfair labor practices filed by the dealers against Foxwoods.
