On March 10, 2009, the House of Representatives reintroduced the Employee Free Choice Act, which would make it easier for workers to organize and increase the strength of labor unions. Enactment of the current version of EFCA or similar legislation, coming on the heels of the District of Columbia Circuit's 2007 decision in San Manuel Indian Bingo & Casino v. NLRB that the National Labor Relations Act (the NLRA) applies to a casino operated by an Indian tribe, could encourage efforts to unionize tribes' casinos and other business ventures.

Senator Daniel Inouye (D-Hawaii) has now expressed his intention to propose an amendment to EFCA that would expressly exclude any federally recognized Indian tribe or tribal subdivision from those employers covered by the NLRA.

EFCA

The latest draft of EFCA contains a controversial provision that would permit a union to represent employees without a secret-ballot election, solely based on a showing that a majority of the employees have signed forms supporting the union. This so-called "card check" procedure would be helpful to unions because employees could be asked to sign cards in front of union officials and coworkers rather than in the privacy of a voting booth.

The NLRA prohibits employers from interfering with employees' efforts to organize, and EFCA would stiffen enforcement, requiring employers to pay fines and increased back pay for violating employee rights. EFCA additionally provides for mandatory binding arbitration if the employer and the union cannot reach a collective bargaining agreement. The arbitrator could — without employer consent — set terms and conditions of employment that would be binding on the employer for two years.

Other Proposals

As several key Democratic Senators have announced that they will not support the current version of EFCA, the prevailing thinking is that EFCA will not pass if it contains the card check provision. The National Labor Relations Modernization Act is an alternative proposal from the House that would increase penalties employers face and require a quicker collective bargaining process but not contain the controversial card check rule. Another compromise proposal would increase penalties for employers and expedite the election process, but neither permit certification by card check nor require arbitration. Other proposals would permit organization by card check but set a higher threshold (e.g., certifying a union only if a full 70 percent of the workers signed authorization cards).

Implications For Tribes

Any version of EFCA, if passed without Senator Inouye's proposed amendment, would likely give unions additional incentives to pursue unionization at workplaces in Indian country that unions have previously avoided. If some version of EFCA now passes without exempting tribal employers, some might read it to support the D.C. Circuit's decision concerning the scope of the NLRA, making it harder for tribal employers to argue they are exempt.

Indian tribes, as sovereign governments, are uniquely positioned to enact legislation over employment in their jurisdictions, and some federal courts have recognized tribal authority to regulate aspects of organized labor. Tribal self-regulation can make federal regulators and federal courts less eager to intervene in tribal affairs. The recent decisions of the federal courts make it more important than ever that tribal employers and governments review and update their employment practices to meet emerging challenges.