Casino Pauma v. NLRB

(9th Cir. 16-70397 4/26/18) NLRA/Commercial Gaming on Tribal Lands

The panel granted the National Labor Relations Board’s petition for enforcement of its order; denied Casino Pauma’s petition for review; and upheld the Board’s conclusions that it may apply the National Labor Relations Act (“NLRA”) to the relationship between employees working in commercial gaming establishments on tribal lands and the tribal governments that own and manage the establishments, and that Casino Pauma committed unfair labor practices in violation of the NLRA by trying to stop union literature distribution.

The panel held that the Board affirmatively waived any preclusion defense before this court, deciding instead to litigate the question of its ability to regulate tribes under the NLRA on the merits.

The panel held that although the NLRA was ambiguous as to its application to tribal employers, the Board’s determination that such employers were covered by the NLRA was a “reasonably defensible” interpretation of the NLRA. The panel also held that, contrary to Casino Pauma’s contentions, application of federal Indian law did not produce a different result in this case. The panel held that there was no conflict between the NLRA and the Indian Gaming Regulatory Act, and concluded that Casino Pauma’s compact with California did not displace the application of the NLRA to its activities.

The panel held that there was no exhaustion bar to consideration of Casino Pauma’s main argument under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), that it did not violate NLRA section 8(a)(1) when it prevented employees from distributing union literature to customers in front of the casino. The panel concluded that the Board properly interpreted Republic Aviation’s holding concerning NLRA section 7 to reach employees’ customer-directed union literature distribution on non-work time in non-work areas of the employer’s property. The panel further held that the Board reasonably applied to Casino Pauma its literature distribution rules concerning casinos. The panel held that the Board’s conclusion that Casino Pauma violated its employees’ NLRA right to distribute union literature was adequately supported, both by the applicable legal principles and the record.

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