888 F.3d 1066
9th Cir.2018Background
- Casino Pauma, a tribe-owned casino on the Pauma Band reservation in California, employed 462 people (most non-tribal) and averaged ~2,900 daily patrons.
- In late 2013 and early 2014 employees distributed union (UNITE HERE) leaflets to customers at the casino entrance/valet area and to coworkers near a time clock; security directed leafleters away and one employee was later disciplined.
- The NLRB General Counsel filed unfair labor practice charges; an ALJ found multiple NLRA violations and the Board (in Casino Pauma II) affirmed and issued remedial orders.
- The Board relied on an earlier jurisdictional determination (Casino Pauma I) that tribes can be NLRA "employers;" the Board declined to press issue-preclusion here, and sought enforcement of its order in this court.
- Casino Pauma challenged the Board’s jurisdiction over tribes under the NLRA, argued federal Indian law and IGRA compact terms should preclude NLRA coverage, and disputed the Board’s application of Republic Aviation to customer-directed leafleting.
- The Ninth Circuit enforced the Board order, holding (1) the NLRA can cover tribe-owned commercial enterprises; (2) federal Indian law does not bar NLRA application here; and (3) Republic Aviation protection extends to employee-distributed literature directed to customers in nonworking, nonwork-time areas (e.g., the casino entrance).
Issues
| Issue | Plaintiff's Argument (Casino Pauma) | Defendant's Argument (NLRB/General Counsel/Union) | Held |
|---|---|---|---|
| Whether the NLRA covers tribe-owned commercial enterprises | NLRA excludes public/governmental entities; tribes are public sovereigns and should be exempt | NLRA’s employer definition does not expressly exclude tribes; Board precedent reasonably includes tribes engaged in commerce | NLRA may apply to tribe-owned commercial enterprises; Board’s construction is entitled to Chevron deference |
| Whether federal Indian law (Coeur d’Alene factors / sovereign immunity) precludes NLRA application | Application would intrude on tribal self-government and sovereign immunity; Congress must clearly intend to reach tribes | NLRA is a generally applicable statute; Casino Pauma operates as a commercial enterprise employing non-Indians; suit is brought by federal actor (NLRB) so sovereign-immunity concerns differ | Federal Indian law does not preclude applying the NLRA to Casino Pauma; Coeur d’Alene test supports coverage; suit by federal agent is proper |
| Whether IGRA compact or compact-based labor scheme displaces NLRA | IGRA/tribe–state compact provides alternate labor scheme and conflicts with NLRA, so NLRA should not apply | IGRA permits compacts but does not immunize tribal gaming from generally applicable federal statutes; no express Congressional displacement | IGRA does not displace the NLRA; compact does not show Congressional intent to preempt federal labor law |
| Whether Republic Aviation protects employee distribution of union literature to customers at casino entrance | Casino Pauma: employer may restrict solicitation to protect customers/property and operations; entrance is employer-controlled guest area | NLRB/Board: Republic Aviation protects distribution during nonworking time in nonwork areas even when targeted at customers; Board’s industry-specific rules designate entrances as nonwork areas | Republic Aviation protection applies; Board reasonably determined valet/entrance is nonworking nonwork-area and enforcement (discipline, photographing, handbook rule) violated §§7 and 8(a)(1)/(3) |
Key Cases Cited
- Republic Aviation Corp. v. NLRB, 324 U.S. 793 (established baseline rule for solicitation/distribution on employer property)
- NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224 (interpreting Board’s broad jurisdiction under the NLRA)
- NLRB v. Chapa-De Indian Health Program, Inc., 316 F.3d 995 (9th Cir. 2003) (recognized NLRA not plainly inapplicable to tribes)
- Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985) (three-part test for applying generally applicable statutes to tribes)
- Santa Clara Pueblo v. Martinez, 436 U.S. 49 (sovereignty/interpretation backdrop for statutes affecting tribes)
- Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) (limits on suits against tribes; context for sovereign immunity)
- Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) (section 7 protection for third-party appeals and public appeals)
- Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978) (judicial review scope of Board rules)
- Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (distinction for nonemployee organizers vs employees already on property)