Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in opposition to S. 140. As has been pointed out, buried in section 3 of this otherwise noncontroversial water and lands bill is the text of H.R. 986, the Tribal…
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in opposition to S. 140.
As has been pointed out, buried in section 3 of this otherwise noncontroversial water and lands bill is the text of H.R. 986, the Tribal Labor Sovereignty Act. This nongermane provision would strip thousands of employees of their rights and protections under the National Labor Relations Act at Tribal enterprises located on Tribal lands.
At issue in the Tribal Labor Sovereignty Act are two solemn and deeply rooted principles:
First, the right that Indian Tribes possess in matters of local self- governance;
Second, the rights of workers to organize unions, bargain collectively, and engage in concerted activities for mutual aid and protection.
Rather than attempting to balance these two important principles, the bill chooses sovereignty for some over the human rights of others. I would note that the approximately 75 percent of workers employed at Tribal casinos are not members of the Tribes running the casino, but this bill would strip labor rights of hundreds of thousands of these workers as well as those who are actually members of the Tribes.
In doing so, this legislation would abandon the carefully drawn balance between Tribal sovereignty and workers' rights that was adopted in the San
Manuel decision by a Republican-led National Labor Relations Board in 2004. Perhaps prompted by litigation, the board ruled that the National Labor Relations Act will only apply if it does not impact the exclusive rights of self-governance in purely intramural matters or abrogate rights guaranteed by treaties.
The San Manuel decision is based on legal principles governing Federal laws of general applicability with respect to Indian Tribes that have been upheld by appeals courts for over 30 years. That is why courts have ruled that Tribes must comply with labor and employment laws such as the Fair Labor Standards Act; the Occupational Safety and Health Act; the Employee Retirement Income Security Act, ERISA; and the employer mandate of the Affordable Care Act.
Yet this bill singles out the National Labor Relations Act on the grounds that Tribes must be given parity with State and local governments which statutorily are exempt from the NLRA. Maybe States and localities should have been considered, but the statutes are clear that they are exempt.
This is not a reason why Tribes should be exempt from an otherwise generally applicable law. Furthermore, State and local governments are covered under title VII of the Civil Rights Act; whereas, Tribes are expressly exempt.
For employees of Tribal enterprises, therefore, unions are the sole protection under Federal law against discrimination, including sexual harassment, because they can negotiate a collective bargaining agreement that enforces employees' rights to be free from such conduct.
Democrats and Republicans together have insisted that our trading partners abide by and enforce basic labor rights anytime we do a trade deal. And Congress has repeatedly required these obligations in trade agreements, but today the House will vote on a bill that takes away the assurance that employees have for the freedom of association if they are employed in many Tribal casinos.
This creates a fair question: Would this legislation place the United States Government in breach of any of the trade agreements that are now in effect? According to the International Labor Organization, in an opinion on a similar bill a few years ago, it would, in fact, put us in breach of trade agreements.
We should be able to fashion compromises that, frankly, protect both workers' rights and Tribal sovereignty, but what is before us today fails that test. There is no principled basis for stripping hundreds of thousands of workers from the right to join a union and negotiate better wages simply because they happen to work in a commercial enterprise on Tribal lands.
Mr. Speaker, I urge a ``no'' vote on the bill, and I reserve the balance of my time.
Mr. Speaker, I yield 2 minutes to the gentleman from the Northern Mariana Islands (Mr. Sablan), the ranking member of the Subcommittee on Health, Employment, Labor, and Pensions.
Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Takano), the ranking member of the Subcommittee on Workforce Protections.
Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from Illinois (Ms. Schakowsky).
Mr. Speaker, I yield 3 minutes to the gentleman from Wisconsin (Mr. Pocan).
Mr. Speaker, will you advise as to how much time is left on both sides.
Mr. Speaker, I yield 2 minutes to the gentlewoman from Ohio (Ms. Kaptur), the ranking member of the Appropriations Subcommittee on Energy and Water Development, and Related Agencies.
I yield the gentlewoman from Ohio an additional 1 minute.
Mr. Speaker, I yield 3 minutes to the gentleman from Maryland (Mr. Hoyer), the Democratic whip.
I yield the gentleman from Maryland an additional 2 minutes.
Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Norcross).
Mr. Speaker, I yield an additional 1 minute to the gentleman from New Jersey.
Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, I include in the Record a letter in opposition to the bill from the AFL-CIO.
AFL-CIO Legislative Alert
American Federation of Labor and Congress of Industrial
Organizations,
Washington, DC, January 9, 2018.
Dear Representative: The AFL-CIO urges you to oppose the
Tribal Labor Sovereignty Act, H.R. 986, which would deny
protection under the National Labor Relations Act (NLRA) to a
large number of workers employed by tribal-owned and -
operated enterprises located on Indian land. Among these
workers are over 600,000 tribal casino workers, the vast
majority of whom are not Native Americans. In recent years,
the number and type of enterprises affected has grown well
beyond the gaming industry, and would now include mining
operations, power plants, smoke shops, saw mills,
construction companies, ski resorts, high-tech firms, hotels,
and spas. Many of these are commercial businesses that
compete with non-Indian enterprises. As proposed, the Tribal
Labor Sovereignty Act would strip all workers in these
enterprises of their rights and protections under the NLRA.
The House bill, introduced by Representative Rokita, would
overturn a decision by the National Labor Relations Board
(NLRB) in San Manuel Indian Bingo & Casino, 341 NLRB No. 138
(2004), which applied the NLRA to a tribal casino enterprise.
In San Manuel, the NLRB looked to Supreme Court and circuit
court precedent to articulate a test for whether the NLRB
should assert jurisdiction over tribal enterprises, whether
located on tribal lands or outside them. (Before San Manuel,
NLRB jurisdiction was determined based solely on location: On
tribal land, the NLRB would forego jurisdiction; off tribal
land, the NLRB would assert jurisdiction. Under the San
Manuel test, the NLRA will not apply if its application would
``touch exclusive rights of self-governance in purely
intramural matters.'' Nor will the NLRA apply if it would
``abrogate Indian treaty rights.'' The Board in San Manuel
also considered other factors, including whether the casino
in question was a typical commercial enterprise, employed
non-Native Americans, and catered to non-Native American
customers.
In San Manuel, the Board concluded that applying the NLRA
would not interfere with the tribe's autonomy, and the
effects of the NLRA would not ``extend beyond the tribe's
business enterprise and regulate intramural matters.''
However, the test articulated in San Manuel provides a
careful balancing of tribal sovereignty interests with the
NLRA's federal labor law protections. In a companion case,
Yukon Kuskokwim Health Corp., 341 NLRB No. 139 (2004), the
Board tipped the balance the other way and didn't assert
jurisdiction.
The AFL-CIO supports the principle of sovereignty for
tribal governments, but does not believe that employers
should use this principle to deny workers their collective
bargaining rights and freedom of association. While the AFL-
CIO continues to support the concept of tribal sovereignty in
truly internal, self-governance matters, it is in no position
to repudiate fundamental human rights that belong to every
worker in every nation. Workers cannot be left without any
legally enforceable right to form unions and bargain
collectively in instances where they are
working for a tribal enterprise which is simply a commercial
operation competing with non-tribal businesses.
The International Labour Organization (ILO), an agency of
the United Nations, has confirmed this view in response to a
question about whether excluding (from the NLRA) workers
employed on tribal lands would conform with principles of
freedom of association. These values are at the core of the
ILO Constitution and the ILO's Declaration on Fundamental
Principles and Rights at Work. The Director for the
International Labour Standards Division wrote that in the
absence of tribal ordinances offering full protection of
internationally recognized rights, ``it is critical that the
State (the national authority) takes ultimate responsibility
for ensuring respect for freedom of association and
collective bargaining rights throughout its territory.'' In
other words, if the tribes themselves don't guarantee these
basic rights--and many do not, the U.S. government must not
abdicate its responsibility to protect them.
Notwithstanding the importance of the principle of tribal
sovereignty, the fundamental human rights of employees are
not the exclusive concern of tribal enterprises or tribal
governments. In fact, the vast majority of employees of these
commercial enterprises, such as casinos, are not Native
Americans. They therefore have no voice in setting tribal
policy and no recourse to tribal governments for the
protection of their rights.
The AFL-CIO opposes any effort to exempt on an across-the-
board basis all tribal enterprises from the NLRA, without
undertaking a specific review of all the circumstances--as
current NLRB standards provide. Where the enterprise employs
mainly Native American employees with mainly Native American
customers, and involves self-governance or intramural
affairs, leaving the matter to tribal governments may be
appropriate. However, where the business employs primarily
non-Native American employees and caters to primarily non-
Native American customers, there is no basis for depriving
employees of their rights and protections under the National
Labor Relations Act.
Sincerely,
William Samuel, Director,
Government Affairs Department.
Mr. Speaker, a lot has been said about State and local being exempt and Tribes not being exempt. Well, that was a decision made way back when. The law specifically exempts State and local. Maybe it should; maybe it didn't; but it did. Tribes were not specifically exempted.
So in conclusion, this bill will strip hundreds of thousands of employees of the right to join a union. Where some Tribes have Tribal labor ordinances that are fair and workable, others do not. And at least one expressly prohibits the formation of unions.
There is no principal basis for excluding these workers from coverage under labor law just because they happen to work in a commercial enterprise on Tribal lands. If this bill will come into law, it will be the first rollback of workers' rights under Federal law in over 70 years, and it may well place the United States in violation of several international trade agreements.
For that reason, Mr. Speaker, I urge my colleagues to oppose the legislation, and I yield back the balance of my time.