By Nelson Cary and Brad Gibson
Investigations by the NLRB’s regional offices of alleged unfair labor practices don’t usually get stopped in their tracks. The unusual happened recently in Oklahoma, however, when a federal judge decided that the NLRA does not apply to the Chickasaw Nation ("Chickasaw"), a federally-recognized American Indian tribe. The court ordered the NLRB’s investigation to stop.
Chickasaw is governed by its citizen-elected government in accord with its own constitution. Chickasaw’s government has three branches, and the executive branch conducts all tribal gaming activities, which are operated in accordance with a comprehensive body of federal and tribal law. The gaming facilities are operated pursuant to location-specific licenses issued by Chickasaw’s Office of Gaming Commissioner and all the gaming facilities are located on Chickasaw’s tribal trust property. One of those locations is the WinStar World Casino (“Casino”).
The NLRB served the Casino with two unfair labor practice charges asserting violations of the NLRA. In response, Chickasaw agreed that the Casino is a tribal government enterprise and that, as a matter of tribal sovereignty, the NLRA does not apply. When the NLRB nonetheless scheduled an administrative hearing for June 1, 2011, Chickasaw filed a complaint in district court halt the NLRB’s proceedings.
The district court granted the Chickasaw’s request. Under applicable precedent relied upon by the district court, “federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization.” The court noted that the NLRA makes no explicit reference to Indian tribes, nor does anything in the NLRA’s legislative history indicate that Congress intended to abrogate tribal sovereignty. Accordingly, the court held that the NLRB did not have exclusive jurisdiction.
Because there was a substantial likelihood Chickasaw would prevail in its claim for a declaratory judgment that it was not subject to the NLRA, the court granted Chickasaw’s request to prevent the NLRB from conducting further proceedings.
For labor professionals, it is important to recognize that this is a special case. The Casino’s ability to assert the Chickasaw’s tribal sovereignty was critical to the outcome of this case. In the vast majority of other cases, it is vital for an employer to actively defend itself from the beginning of an unfair labor practice proceeding.