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On a number of occasions, Hobbs Straus attorneys successfully defended a tribe against EEOC jurisdiction over a tribal casino employee claim.

General Memorandum 11-129

General Memorandum 11-129
House Committee Votes to Slow Down Union Election Process; NLRB Imposes New Posting Requirement on Employers

This memorandum covers the markup of the Workforce Democracy and Fairness Act by the House Committee on Education and Labor, as well as the new directive from the National Labor Relations Board (NLRB), which requires employers to post notices informing employees of their rights under the National Labor Relations Act (NLRA).

House Committee Votes to Slow Down Union Election Process

On October 26, 2011, a divided U.S. House Committee on Education and Labor marked up HR 3094, the Workforce Democracy and Fairness Act, which would reverse the criteria used by the NLRB to determine an appropriate bargaining unit and prevent the NLRB from implementing changes to representation election procedures. The effect of the bill, if enacted into law, would be to slow down the union representation process.

Backed by a Republican majority, the Committee voted to allow parties at a pre-election NLRB hearing to raise "any relevant and material" issue which would include the NLRB's jurisdiction, the size and scope of the bargaining unit, and any other issue that could affect the election's outcome. Democratic Members, led by Ranking Member George Miller (D-CA), had argued that the pre-election procedures would delay union elections and that the scope of the issues that could be raised at the pre-election hearing is too broad.

The bill was introduced by Committee Chairman John Kline (R-MN) to curb recent decisions and actions of the NLRB to accelerate the union representation election process. The bill now proceeds to the House floor for consideration and then a spirited battle in the Senate.

NLRB Imposes New Posting Requirement on Employers

On August 8, 2011, the NLRB issued a final rule requiring employers subject to the NLRA to post notices informing employees of their rights under the NLRA, including their rights to form a union. Originally, the rule was to take effect on November 14, 2011, but implementation was delayed by the NLRB likely due to several law suits filed by private sector employers including the National Association of Manufacturers and the U.S. Chamber of Commerce. The posting requirement is now slated to take effect on January 31, 2012. The NLRB's stated reason for the delay was to allow time for "enhanced education and outreach to employers, particularly those who operate small and medium-sized businesses." The final rule establishes the size, form, and content of the notice, and sets forth provisions regarding the enforcement of the rule. We reported on the proposed rule earlier this year. See General Memorandum No. 11-001 (January 3, 2011).

The NLRB's new posting requirement puts the issue of whether the NLRB has authority over tribal governments in the spotlight by requiring each tribal business to choose whether or not to comply with the NLRB's rule. Prior to this unwelcome choice tribal businesses could largely avoid the question of NLRB's authority over them unless they became the target of union organizers. We note that the U.S. Department of Labor has required employers to post notices of minimum wage rights under the Fair Labor Standards Act (FLSA) and job safety and protection under the Occupational Safety and Health Administration (OSHA). Case law on whether OSHA and the FLSA apply to tribes is divided. See, e.g., General Memorandum 10-047 of April 9, 2010 ("Occupational Safety and Health Act Applies to Tribal Business").

Given the relative uncertainty about how extensive the NLRB's authority is over tribal businesses following the D.C. Circuit's decision in San Manuel Indian Bingo v. NLRB (finding that the NLRB's jurisdiction extends to the San Manuel casino), there will be risks to tribes in complying with the NLRB's posting rule and in not complying with the rule. Complicating this analysis is the NLRB's companion decision in Yukon Kuskokwim Health Corporation holding that a tribal hospital was performing a "traditional governmental function" and thus was not subject to the NLRB's jurisdiction. Unfortunately, the notion of "traditional government functions" in the context of the NLRA is a vaguely-defined concept.

A tribal business that does not post the required notice informing employees of their rights under the NLRA may face an unfair labor charge or unspecified "additional remedies," and thus a possible challenge from the NLRB about its jurisdiction. On the other hand, a tribal business that chooses to comply with NLRB's directive to post the notice in theory could be conceding the NLRB's authority over it and therefore jeopardizing its sovereignty by allowing the federal government rather than the tribal government to regulate in the area of labor and employment relations. The posting may also prompt employees to file NLRB charges against tribal businesses if they feel their rights have been undermined.

The new NLRB poster may be downloaded at: https://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_...

Please let us know if we may provide additional information regarding the Workforce Democracy and Fairness Act or the NLRB's new posting requirement.

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Inquiries may be directed to:
Chris Stearns (cstearns@hobbsstraus.com or 206-902-6680)
Starla K. Roels (sroels@hobbsstraus.com or 503-242-1745)

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