UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD FOXWOODS RESORT CASINO and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO Case Nos. 34-RC-2230 34-CA-11776 34-CA-11778 34-CA-11779 34-CA-11803 34-CA-11820 34-CA-11845 MOTION TO CONSOLIDATE The Mashantucket Pequot Tribal Nation (the Nation ) and the Mashantucket Pequot Gaming Enterprise, d/b/a Foxwoods Resort Casino (the Gaming Enterprise ), an arm of the Nation s Government and a Tribal Employer within the meaning of the Mashantucket Pequot Labor Relations Law, Title XXXII Mashantucket Pequot Tribal Laws, hereby move that the National Labor Relations Board (the Board ) consolidate Case No. 34-RC-2230 with Case Nos. 34-CA-11776 et al. for the purpose of fully considering the issue of the Board s exercise of jurisdiction and for the purpose of meaningful government-togovernment consultation of alternatives to the exercise of jurisdiction. In both the representation case and the unfair labor practice cases, the Nation and the Gaming Enterprise have challenged the Board s exercise of jurisdiction based on similar arguments in both cases. In addition, in both cases the Nation and the Gaming Enterprise have requested that the Board, even if it 1
determines it has jurisdiction, refrain from exercising that jurisdiction in order to fulfill the goals of the NLRA and established federal Indian law. All branches of the U.S. government have long articulated a policy of supporting tribal self-government and self-determination." National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 856 & n.20 (1985). The selfdetermination policy has been reaffirmed by every Administration since President Nixon. For example, Executive Order 13175, Consultation and Coordination of Indian Tribal Governments 3(c) (November 6, 2000) provides: When undertaking to formulate and implement policies that have tribal implications, agencies shall: 1) encourage Indian tribes to develop their own policies to achieve program objectives; 2) where possible, defer to Indian tribes to establish standards; and 3) in determining whether to establish Federal standards, consult with tribal officials as to the need for federal standards and any alternatives that would limit the scope of federal standards or otherwise preserve the prerogatives and authority of Indian tribes. In Case No. 34-RC-2230, the Nation and the Gaming Enterprise have filed a Request for Review challenging the decision of the Regional Director to conduct a representation election despite the fact that the Mashantucket Pequot Labor Relations Law, Title XXXII Mashantucket Pequot Tribal Laws, gives employees the same rights as Section 7 of the National Labor Relations Act and provides for secret ballot elections to determine the wishes of employees with respect to union representation. In Case Nos. 34-CA-11776 et al., the Nation and the Gaming Enterprise have filed a Motion to Dismiss challenging the authority and decision to issue the Consolidated Complaint 1 despite the fact that 1 The Consolidated Complaint alleges a small number of acts that, if proven, would arguably violate Section 8(a)(1) of the National Labor Relations Act. Most of these are isolated incidents 2
the Mashantucket Pequot Labor Relations Law forbids the type of interference alleged by the Consolidated Complaint and despite the fact that the Mashantucket Employment Rights Office 2 has not been given the opportunity to investigate and, if necessary, remedy the acts alleged in the Consolidated Complaint. The Request for Review and the Motion to Dismiss discuss in great detail the Nation s labor relations laws pertaining to organizational rights, method of selecting representatives, and system for enforcement. The two are closely related and share many of the same arguments and much of the same record. The Nation believes that an appropriate review of Board jurisdiction requires consideration of all of these cases at one time Likewise, the United States policy of government-to-government consultation, which requires consideration of alternatives that would limit the scope of federal standards or otherwise preserve the prerogatives and authority of Indian tribes, would be furthered by joint consideration of representation and unfair labor practice issues. For example, in its Motion to Dismiss, the Nation has asked the Board to, at a minimum, consider requiring exhaustion of tribal remedies prior to invocation of Board jurisdiction. involving only a few employees. There is only one Section 8(a)(3) allegation, and that allegation involves a suspension and not a discharge. In light of the fact that the bargaining unit in Case No. 34-RC-2230 is comprised of approximately 2,600 employees, the relatively few and minor allegations in the Consolidated Complaint reflect the Nation s overwhelming respect for and willingness to protect employees organizational rights. 2 The Tribe s Labor Relations Law provides that until the Mashantucket Employment Rights Office (MERO) is fully staffed, the Mashantucket Pequot Tribal Court, pursuant to Title XXXII M.P.T.L, Ch. 1, Sec. 7(b), will exercise the authority of the MERO. The Tribal Court, of course, has great familiarity with employee relations matters due to its routine adjudication of claims arising out of the robust employee protection and grievance laws of the Nation, see, e.g., Title VIII M.P.T.L., and accordingly has substantial relevant expertise in this area. The Court may, at its discretion, appoint Special Masters to investigate any charges that ordinarily MERO would investigate. Id. 3
For all of the above reasons, the Nation requests that the Board consolidate the above-referenced cases for the purpose of addressing the jurisdictional issue. Respectfully submitted this 19th day of November, 2007, Keith M. Harper Richard B. Hankins Alston D. Correll KILPATRICK STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 Telephone: (404) 815-6500 Facsimile: (404) 815-6555 4
STATEMENT OF SERVICE This is to certify that a true and correct copy of this document is being served this day upon the following persons, by Federal Express overnight delivery addressed as follows: Peter B. Hoffman Regional Director National Labor Relations Board 280 Trumbull Street 21 st Floor Hartford, CT 06103 Thomas J. Meiklejohn, Esq. Counsel for the Union Elizabeth A. Conklin, Esq. Livingston, Alder, Pulda, Meikeljohn & Kelly P.C. 557 Prospect Avenue Hartford, CT 06105 Richard T. Sponzo, Esq., Counsel for the State Assistant Attorney General Office of the Attorney General 55 Elm Street 5 th Floor Hartford CT 06106 Additionally, the aforementioned individuals are being notified by telephone voice mail that this document is being filed electronically. Richard B. Hankins KILPATRICK STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 Telephone: (404) 815-6500 Facsimile: (404) 815-6555 Attorneys for Mashantucket Pequot Tribal Nation 5