Tribal Council challenges Morning Sun article and decision regarding NLRB
12/15/2014 9:00:00 AM - Tribal Observer

Tribal Council challenges Morning Sun article and decision regarding NLRB

By Joseph V. Sowmick, Photojournalist

With the mainstream media nowadays, many Native Tribes have taken to press releases and placing paid advertisement in the local press to make sure an important story is reported in its entirety.  The process breaks down when the local press refuses to comply by turning down an advertorial (a paid advertisement considered an editorial) and decides to use the submitted piece as they see fit.  

The advertorial explains, “In the Nov. 11 issue of the ‘Morning Sun’, Rick Mills wrote an article describing the National Labor Relations Board (“Board”), or NLRB, recent decision in the ongoing litigation between the Saginaw Chippewa Indian Tribe and the Board.

Mills’ article “Feds order Tribe to allow union efforts, rehire worker” provides, at best, a confused version of the events and meaning of the Board’s decision.   

The position of the Tribe is similar to that of many tribes throughout the country.  The Tribe believes that the federal law that allows for union organizing, that National Labor Relations Act, does not apply to federally-recognized Indian tribes or their gaming facilities. 

The Tribe’s position rests on two legal principles: 1) that the federal law does not apply to state governments and Indian tribes are not mentioned at all in the law and 2) that application of the federal law to the Tribe would violate the Tribe’s rights under its treaties of 1855 and 1864.  United States Supreme Court precedent cited by the Tribe in its litigation supports this position and this issue will ultimately “be argued before the Federal Sixth Circuit Court of Appeals and possibly the Supreme Court.”

The San Manuel Band of Mission Indian in Highland, Calif. back in 2007 fought unsuccessfully against the NLRB in their assertion of Tribal sovereignty and the Mashantucket Pequot’s, who own Foxwoods and Mohegan Sun in Connecticut, have a similar history.   

The advertorial continues “the Tribe has had a case in litigation against the Board since 2011 when the Board filed a complaint against the Soaring Eagle Casino’s No Solicitation Policy. The Tribe argued that the Board does not have jurisdiction over the Tribe’s casino and the Board ruled against the Tribe in April of 2013.  After the Board ruling, the Tribe appealed to the federal Court of Appeals and was set for oral argument at that Court when the U.S. Supreme Court ruled that the Board panel that ruled against the Tribe was unconstitutionally appointed by President Obama.  As a result of the Supreme Court’s decision the federal Court of Appeals sent the Tribe’s case and many other cases around the country, back to the newly constituted Board for review and decision.  Not surprisingly, the new Board ruled the same way as the prior Board and issued its decision against the Tribe on Oct. 27.  The Tribe has recently filed an appeal again to the Federal Sixth Circuit Court of appeals and that case is currently pending.”

“In an Oct. 27 NLRB vote at Soaring Eagle, the employees soundly made their voice heard and rejected the attempt by the Security, Police and Fire Professionals of America to unionize,” SCIT Public Relations Director Frank Cloutier said.  “Out of 159 possible ballots, 129 voted against and only 16 voters supported joining a union.  In political circles, an 81.1 percent vote against unionization would be an overwhelming rejection by our employees of the NLRB effort.”

Cloutier is certain Mills’ article misconstrues the Board’s decision and its relevance to the Tribe and wanted to clarify those comments through the Tribal media where both the “Tribal Observer” and “Indian Country Today” are picking up the story.  

The advertorial asserts, “According to Mr. Mills, the decision by the Board means the Tribe will post and distribute notices telling employees that the Soaring Eagle has violated federal law and that management has suspended no-solicitation rules aimed at stopping efforts to form unions.”  This statement is simply not true. 

The Tribe has a right to appeal the Board’s decision and does not have to comply with the Board’s order unless and until the Tribe ultimately losses its case at the Sixth Circuit Court of Appeals or the U.S. Supreme Court.

Most egregious was Mills’ claim that the notice routinely issued by the Board in these cases that provides that the employer will not suspend, discharge, or otherwise discriminate for support of the union was the Tribe’s notice.  This is also not true.  The Tribe has not posted any notice presented by the Board in its decision and is not obligated to do so.   The Tribe has and continues to maintain that the National Labor Relations Act does not apply to the Tribe and that the Board does not have jurisdiction over the Tribe or its casino.

The Tribe takes its case with the Board seriously and reporting by this paper on such a matter of importance to the community should be taken seriously as well.

As press time, Tribal Council has not rendered any other statement but will continue to protect our treaties and Tribal sovereignty against the efforts of the NLRB.