NLRB Jurisdiction Expanded to Include Tribal Casino

A Sixth Circuit Court panel has affirmed a decision of the Board extending its jurisdiction to Indian tribal casinos, despite the tribes’ inherent sovereignty. The ruling tees up the possibility of a Sixth Circuit en banc review or a petition to the U.S. Supreme Court seeking certiorari, clarifying the law as to NLRB jurisdiction over Indian tribe employees. Soaring Eagle Casino v. NLRB (6th Cir. July 1, 2015).

The casino handbook included a no-solicitation policy that prohibited union solicitation on the casino property and threatened discharge or discipline for violations of the policy. The Board, while finding a violation of the Act, determined that it had jurisdiction over the tribe based upon the following:

  • Restricting operations at a casino on reservation land does not interfere with the tribe’s right of self- governance.
  • The applicable treaties only provided for a general right of exclusion (non-Indians) and did not bar application of an act of general applicability like a NLRA.
  • Nothing in the language of the NLRA or its legislative history shows a congressional intent to exclude Indians from its coverage.

This Sixth Circuit panel, in its decision granting enforcement, disagreed with a decision from another Sixth Circuit panel regarding the applicability of federal statutes of general application to Indian tribes. Additionally, there is a split among the Circuit Courts of Appeal regarding the question of whether these types of federal statutes apply to sovereign Indian tribal businesses.

This Board decision and subsequent enforcement of the decision, along with the split among Appeals courts, appear to make this issue ripe for U.S. Supreme Court review.

Due to Non-Board Settlement Between Parties, the NLRB Suspends Briefing of Issue of Non- Members Paying for Grievance Filing

On July 7, 2015, the NLRB suspended an invitation to file briefs on the legality of a union “fair share” fee paid by non-members for the processing of grievances. Steelworkers Local 1192 (Buckeye Fla. Corp.) (2015).

The NLRB is currently considering the parties’ joint motion to remand the case to the ALJ and the propriety of the proposed non-Board settlement.

The current law, established in 1976, states that the right to avail oneself of the grievance process is a “matter of right,” and that discriminating against non-members by charging them for what is due them under the labor laws is a violation of the NLRA.

It remains to be seen if the case ultimately will be the first step in eroding right-to-work laws, as the current litigation only applies to the “processing of grievances.” Right-to- Work laws are specifically authorized by Section 14(b) of the NLRA.

NLRB Continues to Erode Employer’s Rights to Expect Confidentiality during Workplace Investigations

Remanded because of the Noel Canning decision, the Board has re-issued its decisions in Baptist Homes d/b/a Piedmont Gardens (2015) and Banner Health System d/b/a Banner Estrella (2015). Both cases continue to erode employer’s attempts to maintain confidentiality during workplace investigations.

In Piedmont Gardens, the Board adopted a new standard for a union’s access to an employer’s witness statements. It overruled a previously-recognized blanket exemption on mandatory disclosure where a confidentiality  claim was made by an employer.

The Board has adopted instead a new “balancing test” set forth in the 1979 Supreme Court case, Detroit Edison

v. NLRB. The new test will balance the union’s need for the requested information against any “legitimate and substantial confidentiality interest established by the employer.”

The NLRB has ordered Piedmont to turn over the names and titles of the witnesses to a misconduct incident resulting in discharge, and any statements submitted by anonymous witnesses in support of the discharge decision.

In Banner-Estrella, the NLRB concluded that a narrowly tailored “request” that an employee refrain, “while this investigation is going on,” from repeating what was discussed during an investigative meeting was a violation of the Act.

In the 2-1 decision, the Board found that Section 7 of the NLRA gives employees the right to discuss discipline and disciplinary investigations, and that Banner-Estrella did not  offer  any  business  justification  for  curbing  such  discussions, and further that even mere requests for secrecy were illegal.

Expect Banner-Estrella to be appealed to a U.S. Circuit Court. An appeal has already been filed in the D.C. Circuit by Piedmont.

The Takeaway from Piedmont and Banner

These decisions undoubtedly place greater burdens on employers conducting workplace investigations. The major problem with the Detroit Edison balancing test is that it makes it difficult to prove that statements need to remain confidential, and thus makes it more likely that any statement a witness files with an employer is going to be seen by the union and grievant. Now employers must conduct investigations into alleged misconduct, while at the same time trying to protect those employees reporting the misconduct.

In addition, a virtual “second-track” of litigation has been created by the balancing test (i.e. – should an information request for statement be honored by employers?) that runs on a different track from the arbitration process.

Piedmont’s attorney, David Durham, stated in interviews that the Detroit Edison test is “unworkable and creates a huge burden:

How is an HR representative handling a routine grievance going to know how to do the balanc[ing] test? How will they know what a union’s interests are if the union is not articulating that interest? If this [decision] holds up, it’s the same thing as saying you’ve got to turn [the statements] over.

There is no evidence that unions were in any way hampered by the [previous] rule in the last 38 years. What are the facts here screaming out to change an unbroken precedent?

Durham predicts a large number of amici curiae briefs will be filed in the Circuit Court.