Union issue holds up millions from tribes

By Carole Goldberg, May 23, 2007

A half-billion dollars in new state revenues should be an easy sell. But a tricky union issue may stall an agreement between Gov. Arnold Schwarzenegger and five California Indian nations.

The agreement allows expansion of the tribes’ gaming facilities in exchange for projected payments of a half-billion dollars annually to the state. The tribal casinos have the customers, and the state could definitely use the revenue.

All that stands in the way of this agreement is approval by the Legislature. And all that stands in the way of legislative approval is a demand by the Hotel Employees and Restaurant Employees Union (United HERE!) that the compacts include provision for a certain form of union organizing.

In particular, United HERE! wants the workers’ decision regarding union representation to be made by individual employees signing cards, rather than by a secret ballot. That demand should not prevent legislators from approving the compacts, which strike a reasonable balance between labor rights and respect for tribal sovereignty.

As a general rule, unions are much more successful organizing by this “card-check” process than through secret ballots. Some unions claim that secret ballots leave room for employer coercion, and some employers claim that card-check organizing facilitates coercion by the unions. The five tribes’ existing compacts, in force since 1999, provide for union elections through secret ballots.

Five other amended compacts that the governor signed in 2004 did require the other tribes to accept a union organized by the card-check method. United HERE! wants the newest compacts to follow the 2004 compact model rather than the 1999 model. The five tribes now seeking ratification of their compacts protest that the union has not tried hard enough to organize using a secret ballot, and that the choice of organizing method should be the tribes’ to make, so long as federal legal requirements are met.

Even labor sympathizers — and I count myself among them — should favor approval of the newest compact amendments, despite the absence of the card-check provisions. Under the federal Indian Gaming Regulatory Act, California is required to negotiate with the tribes in good faith. That obligation is imposed on the state because the tribes are federally recognized governments, and the casinos they operate are government enterprises supporting government functions such as schools, language revitalization efforts and health care. Tribal casinos are not private businesses.

The fact that some tribes in 2004 accepted the card-check requirement does not make it proper for California to insist on similar requirements for other tribes. Each Indian nation is a separate government, and it is not surprising that tribes would have varying views about the importance of their sovereignty in relation to labor organizing and other activities. In addition, three of the five tribes that agreed to the card-check requirement in 2004 were already represented by unions, making the additional demand moot as to them.

Moreover, unions have greater federal protection for their organizing efforts at tribal casinos today than they did in 1999 or 2004. A recent decision by a federal appeals court determined, for the first time, that the National Labor Relations Act applies to workers at tribal casinos. Although the NLRA does not currently guarantee unions the right to organize workers via the card-check method, it does protect against employer interference with the organizing process. Unions have been trying to persuade the new Congress to amend the NLRA to insist that unions be allowed to organize by card checks as well as secret ballots. Such a measure has passed in the House and is pending in the Senate.

Given that the U.S. Constitution gives Congress, not the states, the power to regulate commerce with the Indian tribes, it is preferable to let Congress, not a state compact, determine whether the card-check system should be imposed on tribes.

If California defers to federal standards for union organization at tribal casinos, workers will still have plenty of rights, and tribal sovereignty will have its proper respect.