The Day, New London, CT, November, 27, 2007, Tuesday

The Day, New London, CT, November, 27, 2007, Tuesday

The Day.com

Tribe To File Objection To Union Vote
Mashantuckets' challenge could lead to federal lawsuit


By Patricia Daddona Published on 11/27/2007

Three days after Foxwoods Resort Casino table-game dealers voted to approve representation by the United Auto Workers union, their employer made it clear that it won't back down from a legal fight over a decision it believes challenges its sovereignty.

Late Monday, the Mashantucket Pequot tribe confirmed that its next move would be an objection to the election for representation by the UAW. The tribe intends to file the complaint at week's end, following the union vote conducted by the National Labor Relations Board.

“We will be filing our objections with the NLRB by Friday,” tribal spokesman Bruce MacDonald said. “I can't say anything else about it.”

The official deadline for filing objections is Monday, according to John Cotter, assistant regional director for the NLRB in Hartford.

Unions and tribal casinos around the country are closely watching developments in the case, which could have national implications. Other unions already have reported a renewed push to organize Foxwoods' food-service and maintenance workers.

One Foxwoods dealer, Peter Trafaconda of Sterling, said he was both surprised and not surprised that the tribe would find another avenue to challenge the election. As an election observer for the union, he kept his eye on election activities for four hours and saw no improprieties, he said.

“I thought it was a very clean election, from both sides,” Trafaconda said. “There was no campaigning near the entrances. ... I wish the company would just accept our clear decision of what we want and sit down and negotiate with us in good faith.”

Technically, employers are only allowed to object to either a campaign to organize workers or an actual union vote, but Cotter said employers file objections for other reasons “all the time,” even though they may be “inappropriate.” An objection to the election based on jurisdictional issues, he said, would be inappropriate and would be dismissed, since the regional and national boards have already ruled on it.

The tribe already has argued before the NLRB, unsuccessfully, that its inherent sovereign authority, its enactment of tribal labor and other laws, and its government's reliance on the casino as its primary source of revenue necessitate that tribal labor law, not federal labor law, be applied to unionization.

Cotter said if the tribal objection is made solely on jurisdictional issues, it would be an indirect way to secure a court challenge. “It appears there's no aspect of the board's process in which they're not going to make that issue,” he said of the jurisdictional debate.

According to Cotter, once the NLRB resolves or dismisses the tribe's objections, it will certify the election and empower the UAW to bargain for a contract with Foxwoods. At that point, if the tribe refuses to negotiate a contract, it would be in violation of federal labor law.

The NLRB would then file suit against the tribe in federal court to force it to act in accordance with its laws, Cotter said.

Refusing to bargain may seem manipulative, but “it's the only way to get court review,” said Joseph Turzi, a management-side labor lawyer with DLA Piper, an international law firm in Washington.

Cotter and Turzi said either the Washington or 2nd Circuit federal appeals court would likely handle the matter.

Despite a Feb. 9 ruling in the D.C. appeals court that a casino owned by the San Manuel band of Mission Indians is subject to federal labor laws, the jury is still out on whether federal labor law pertains to tribal-owned businesses, Turzi said. However, he said, Foxwoods' experience could encourage unions to organize at other tribal casinos around the country — a view supported by other experts.

Lee H. Adler, who teaches employment law at the School of Industrial and Labor Relations at Cornell University, said the UAW's win at Foxwoods could speed up efforts by unions to organize other Indian-run casinos.

“It will certainly increase the unions that are interested in organizing the casinos,” he said. “Whether it will result in more casinos getting organized will in part depend on the first contract, how Foxwoods responds and what the union learns from its organizing campaign.”

Hammering out a contract could be difficult, Adler said.

“Depending on Foxwoods' position, getting a first contract is not as easy just because you win an election,” he said.

Employers have sometimes ended union recognition if a contract has not been negotiated within a year, Adler said.

In the Trafaconda household, word of the tribe's persistence in battling the election results was not welcome. Peter and his wife, Rene, are dealers who have each been with Foxwoods for 13 years. Both voted for the union to represent them, they said.

Peter Trafaconda said dealers would not begin paying union dues, which will amount to $408 a year, until a bargaining committee is formed and a contract is negotiated, so he and his colleagues are just waiting eagerly for some resolution.

Rene Trafaconda, who worked Sunday after election results were in, said morale was high among dealers and is likely to remain so.

“Everybody seemed very pleased with the outcome, at least the people I saw. We were all happy and hugging,” she said. As for the tribe, she said, “I think they're going to keep trying to fight it as long as they can.”

Information from an Associated Press report was included in this story.