Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Colin Wells and Taylor Ball
• Publication year: 2018
• Citation: Vol. 32 No. 4

NLRA Case Notes

By Colin Wells and Taylor Ball

Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com. Taylor Ball, Counsel at the Seattle office of Davis Wright Tremaine LLP, represents management in labor and employment matters.

Ninth Circuit Holds Tribal Employers Are Subject to Board's Jurisdiction Under NLRA

Casino Pauma v. NLRB, 888 F.3d 1066 (9th Cir. 2018)

A three-judge panel of the Ninth Circuit Court of Appeals enforced a decision by the National Labor Relations Board (Board). The Board's decision held that an employer operating a casino on tribal land violated the National Labor Relations Act (Act) by prohibiting employees from distributing pro-union leaflets in non-work areas on non-working time. In so doing, the Court held that the Act gives the Board jurisdiction over employers operating their businesses on tribal property. The panel consisted of Circuit Judges Richard Linn, Marsha S. Berzon, and Paul J. Watford, with Judge Berzon writing the decision.

The case stems from a dispute between the employer, a hotel-casino located on Native American tribal property, and employees who distributed pro-union leaflets during an organization campaign. The employees were threatened with, and disciplined, by the employer after handing out the leaflets to customers and other employees in the valet carport of the casino, at an exit in the rear, and while standing in line to clock out. The employees engaged in this conduct during non-working time. An administrative law judge (ALJ) found that the employer's conduct and its policy prohibiting solicitation on casino property violated § 8(a)(1) of the Act, and a subsequent three-member Board agreed. In issuing its decision, the Board also held that the Act applies to employers on tribal property.

On appeal, the court held that while the Act is ambiguous as to whether it applies to tribal employers, the Board's determination that such employers are covered is a "reasonably defensible" interpretation of the statute. The court reasoned that because the Act is silent as to whether tribal employers fall within the definition of "employer," and tribal employers are not specifically excluded from the Act's reach as in other federal statutes, deferral to the Board's interpretation of the Act is required. The court also rejected the employer's argument that federal Indian law or California's Indian Gaming Regulatory Act labor provisions precludes application of the NLRA.

Board Potentially Broadens Scope of Protected Concerted Activity to Include Filing an Unemployment Claim

Mexican Radio, 366 NLRB No. 65 (April 20, 2018)

A three-member panel of the Board unanimously held that the employer violated § 8(a)(1) of the Act when it terminated four employees for replying in agreement with a group email that complained about various working conditions. The Board further held that the employer violated the Act when it retroactively issued discipline to one of the terminated employees after she filed an unemployment claim with the New York State Department of Labor. Members McFerran...