The proposed federal Employee Free Choice Act (EFCA) introduced in the House of Representatives earlier this year is designed to aid the organization efforts of labor unions. Among other provisions, the current version of EFCA would eliminate secret-ballot elections for union certification and allow a union to be established through a “card check” system similar to gathering signatures for a petition. In conjunction with the 2007 decision in San Manuel Indian Bingo & Casino v. NLRB that applied the National Labor Relations Act (the NLRA) to Tribal casinos, the likelihood of union organization activity in Tribal jurisdictions would increase significantly. In response, Senator Daniel Inouye (D-Hawaii) has stated his intention to propose an amendment to EFCA that would expressly exclude any federally recognized Tribe or Tribal entity from coverage by the NLRA.
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’s most controversial provision would allow a union to be recognized as the sole collective bargaining unit for employees based strictly on a majority of employees have signing forms in favor of the union, rather than through a secret ballot election. 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.
As the federal legislation continues to develop, it behooves Tribes to create their own labor and employment policies and procedures to govern conduct within their jurisdiction. Federal intervention in Tribal legal affairs is often based on a Tribe’s lack of specific regulations addressing topics (e.g. labor and employment); conversely, federal agencies are often less likely to assert authority over Tribal affairs when the Tribe at issue has its own well-defined legal policies that render federal involvement unnecessary.