Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

114th Congress }                                           { Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                           { 114-260

======================================================================

 
                  TRIBAL LABOR SOVEREIGNTY ACT OF 2015

                                _______
                                

 September 10, 2015.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Kline, from the Committee on Education and the Workforce, submitted 
                             the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 511]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 511) to clarify the rights of Indians 
and Indian tribes on Indian lands under the National Labor 
Relations Act, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Tribal Labor Sovereignty Act of 
2015''.

SEC. 2. DEFINITION OF EMPLOYER.

  Section 2 of the National Labor Relations Act (29 U.S.C. 152) is 
amended--
          (1) in paragraph (2), by inserting ``or any Indian tribe, or 
        any enterprise or institution owned and operated by an Indian 
        tribe and located on its Indian lands,'' after ``subdivision 
        thereof,''; and
          (2) by adding at the end the following:
  ``(15) The term `Indian tribe' means any Indian tribe, band, nation, 
pueblo, or other organized group or community which is recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians.
  ``(16) The term `Indian' means any individual who is a member of an 
Indian tribe.
  ``(17) The term `Indian lands' means--
          ``(A) all lands within the limits of any Indian reservation;
          ``(B) any lands title to which is either held in trust by the 
        United States for the benefit of any Indian tribe or individual 
        or held by any Indian tribe or individual subject to 
        restriction by the United States against alienation; and
          ``(C) any lands in the State of Oklahoma that are within the 
        boundaries of a former reservation (as defined by the Secretary 
        of the Interior) of a federally recognized Indian tribe.''.

                                Purpose 

    H.R. 511, the Tribal Labor Sovereignty Act of 2015, 
protects tribal sovereignty and the right to tribal self-
governance. The bill codifies the standard of the National 
Labor Relations Board (NLRB or Board) prior to 2004 by amending 
the National Labor Relations Act (NLRA) to provide that any 
enterprise or institution owned and operated by an Indian tribe 
and located on its land is not considered an employer, 
excluding such from coverage of the NLRA.

                            Committee Action


                             112TH CONGRESS

Subcommittee hearing examining proposals to strengthen the National 
        Labor Relations Act

    On July 25, 2012, the Subcommittee on Health, Employment, 
Labor, and Pensions held a hearing entitled ``Examining 
Proposals to Strengthen the National Labor Relations Act,'' 
reviewing decisions by the NLRB affecting tribal sovereignty, 
secret ballot elections, and employee compensation. The hearing 
also examined three legislative proposals: H.R. 972, the Secret 
Ballot Protection Act; H.R. 2335, the Tribal Labor Sovereignty 
Act; and H.R. 4385, the RAISE Act. The witness testifying on 
tribal sovereignty stated the NLRB finding that Indian tribal 
governments are not exempt from NLRA requirements was unfounded 
and violated treaty rights.\1\ Witnesses before the 
subcommittee were the Honorable Robert Odawi Porter, President, 
Seneca Nation of Indians, Salamanca, New York; Mr. William L. 
Messenger, Staff Attorney, National Right to Work Legal Defense 
Foundation, Springfield, Virginia; Ms. Devki K. Virk, Member, 
Bredhoff and Kaiser, P.L.L.C., Washington, D.C.; and Dr. Tim 
Kane, Chief Economist, Hudson Institute, Washington, D.C.
---------------------------------------------------------------------------
    \1\Examining Proposals to Strengthen the National Labor Relations 
Act: Hearing Before the Subcomm. on Health, Employment, Labor, and 
Pensions of the H. Comm. on Educ. and the Workforce, 112th Cong. 9 
(written testimony of the Hon. Robert Odawi Porter).
---------------------------------------------------------------------------

                             114TH CONGRESS

H.R. 511, Tribal Labor Sovereignty Act of 2015, introduced

    On January 22, 2015, Rep. Todd Rokita (R-IN) introduced the 
Tribal Labor Sovereignty Act of 2015 with 14 cosponsors.\2\ 
Recognizing the threat to tribal sovereignty posed by the 
NLRB's decision in San Manuel Indian Bingo and Casino,\3\ the 
legislation provides any enterprise or institution owned and 
operated by an Indian tribe and located on its land is not 
considered an employer and therefore is not covered by the 
NLRA.
---------------------------------------------------------------------------
    \2\H.R. 511, 114th Cong. (2015).
    \3\341 NLRB No. 138 (2004).
---------------------------------------------------------------------------

Subcommittee legislative hearing on H.R. 511

    On June 16, 2015, the Subcommittee on Health, Employment, 
Labor, and Pensions held a legislative hearing on H.R. 511, the 
Tribal Labor Sovereignty Act of 2015.\4\ Witnesses included the 
Honorable Rodney Butler, Chairman, Mashantucket Pequot Nation, 
Mashantucket, Connecticut; Mr. Richard Guest, Senior Staff 
Attorney, Native American Rights Fund, Washington, D.C.; the 
Honorable Jefferson Keel, Lieutenant Governor, Chickasaw 
Nation, Ada, Oklahoma; and Mr. Gary Navarro, Slot Machine 
Attendant and Bargaining Committee Member for UNITE HERE Local 
2850, Graton Casino and Resort, Rohnert Park, California. 
Witnesses testified H.R. 511 is necessary to clarify the rights 
of Indian tribes on Indian lands and provide parity for tribal 
governments with federal, state, and local governments under 
the NLRA.
---------------------------------------------------------------------------
    \4\Legislative Hearing on H.R. 511, Tribal Labor Sovereignty Act of 
2015: Hearing Before the Subcomm. on Health, Employment, Labor, and 
Pensions of the H. Comm. on Educ. and the Workforce, 114th Cong. 
(2015).
---------------------------------------------------------------------------

Committee passes H.R. 511, Tribal Labor Sovereignty Act of 2015

    On July 22, 2015, the Committee on Education and the 
Workforce considered H.R. 511, the Tribal Labor Sovereignty Act 
of 2015.\5\ Rep. Todd Rokita (R-IN) offered an amendment in the 
nature of a substitute, making a technical change to clarify 
that an Indian tribe is not considered an employer covered by 
the NLRA. The Committee favorably reported H.R. 511 to the 
House of Representatives by voice vote.
---------------------------------------------------------------------------
    \5\H.R. 511, Tribal Labor Sovereignty Act of 2015: Markup Before 
the H. Comm. on Educ. and the Workforce, 114th Cong. (2015).
---------------------------------------------------------------------------

                                Summary

    The Tribal Labor Sovereignty Act of 2015, H.R. 511, will 
codify the NLRB standard regarding Board jurisdiction that 
existed prior to the 2004 San Manuel Indian Bingo and Casino 
decision, amending the NLRA to provide that any enterprise or 
institution owned and operated by an Indian tribe and located 
on its land is not considered an employer under the NLRA.

                            Committee Views 

    In 1935, Congress passed the National Labor Relations Act 
(NLRA), guaranteeing the right of most private sector employees 
to organize and select their own representative.\6\ In 1947, 
Congress passed the most significant amendment of the NLRA, the 
Taft-Hartley Act,\7\ abandoning ``the policy of affirmatively 
encouraging the spread of collective bargaining . . . [and] 
striking a new balance between protection of the right to self-
organization and various opposing claims.''\8\ The Taft-Hartley 
Act clarified that employees have the right to refrain from 
participating in union activity,\9\ created new union unfair 
labor practices,\10\ codified employer free speech,\11\ and 
made changes to the determination of bargaining units.\12\
---------------------------------------------------------------------------
    \6\The NLRA does not cover all employees and employers in the 
United States. For example, public sector employers (state, local, and 
federal employees), employers covered by the Railway Labor Act 
(airlines and railroads), agricultural laborers, and supervisors are 
not covered by the act. 29 U.S.C. Sec. 152(2)-(3).
    \7\29 U.S.C. Sec. 141 et. seq.
    \8\Archibald Cox, Some Aspects of the Labor Management Relations 
Act of 1974, 61 Harv. L. Rev. 1, 4 (1947).
    \9\29 U.S.C. Sec. 157.
    \10\Id. Sec. 158.
    \11\Id. Sec. 158(c).
    \12\Id. Sec. 159(d).
---------------------------------------------------------------------------
    The NLRA established the NLRB, an independent federal 
agency, to fulfill two principal functions: (1) to prevent and 
remedy employer and union unlawful acts, called unfair labor 
practices or ULPs, and (2) to determine by secret ballot 
election whether employees wish to be represented by a union. 
In determining whether employees wish to be represented by a 
union, the NLRA is wholly neutral.\13\
---------------------------------------------------------------------------
    \13\NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973).
---------------------------------------------------------------------------

Regulation of state labor relations

    Congress understood the differences between the private and 
public sectors when it excluded states from the NLRA. States 
have promulgated varying labor laws based on the specific needs 
of the states. For example, most states permit collective 
bargaining and collective wage negotiations for public-sector 
workers, while a minority of states prohibits public-sector 
workers from such collective action.\14\ Conversely, most 
states do not afford public-sector workers the right to 
strike.\15\
---------------------------------------------------------------------------
    \14\Milla Sanes and John Schmitt, Regulation of Public Sector 
Collective Bargaining in the States, Ctr. for Econ. and Policy 
Research, 4-8 (Mar. 2014), http://www.cepr.net/documents/state-public-
cb-2014-03.pdf.
    \15\Id. at 8-9.
---------------------------------------------------------------------------

Tribal labor and employment law

    Like the states, tribal nations have worked to protect the 
rights of their employees, passing labor and employment laws 
modeled after federal laws but tailored to the specific needs 
of the tribes. In testimony before the Subcommittee on Health, 
Employment, Labor, and Pensions, Rodney Butler, chairman of the 
Mashantucket Pequot Nation, described a number of provisions of 
the Mashantucket Pequot Labor Relations Law (MPLRL). The law 
guarantees ``the Nation's employees the right to organize and 
bargain collectively with their employers'' and ``allows labor 
organizations to be designated as the exclusive collective 
bargaining representatives of employees.''\16\
---------------------------------------------------------------------------
    \16\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Rodney Butler at 5) (internal quotation marks 
omitted).
---------------------------------------------------------------------------
    Chairman Butler stated:

          In sum, the MPLRL is modeled after other public 
        sector laws, is similar to the NLRA in many aspects, 
        and essentially furthers the policies and principles 
        that are fundamental to federal labor policy as 
        enforced by the Board. It provides employees of Tribal 
        Employers with protections that are in many instances 
        identical to or, in some respects, more effective than 
        those provided to employees of private employers under 
        the NLRA. At the same time, the Nation's labor law 
        protects important tribal and federal objectives in 
        preserving and enhancing the Nation's self-governance 
        through the use and recognition of its institutions and 
        the preservation of its sovereignty.\17\
---------------------------------------------------------------------------
    \17\Id.

    Chairman Butler noted the Mashantucket Employment Rights 
Office has conducted at least six elections under the MPLRL, 
with four unions certified as the exclusive bargaining 
representatives of units of employees.\18\ The Mashantucket 
Pequot Nation subsequently entered into collective bargaining 
agreements with those four unions.\19\
---------------------------------------------------------------------------
    \18\Id.
    \19\Id.
---------------------------------------------------------------------------
    Similarly, the Navajo Nation's labor laws protect the right 
to collectively bargain while additionally including a right-
to-work provision. Richard Guest, senior staff attorney of the 
Native American Rights Fund, discussed unionization rights 
under the Navajo Nation labor code in his testimony to the 
subcommittee. Mr. Guest stated that in 1985 the Navajo Nation 
council ``incorporate[d] the most basic privileges of the 
[NLRA] to tribal employees, whom the council acknowledged were 
otherwise exempt from the NLRA.''\20\ This included the right 
to collectively bargain.\21\ In 1990, the council voted for the 
Navajo Nation to become a ``right to work'' jurisdiction, 
disallowing labor organizations from collecting union dues from 
non-members.\22\ Unions are collectively bargaining with the 
Navajo Nation and private employers on tribal land.
---------------------------------------------------------------------------
    \20\Id. (written testimony of Richard Guest at 6).
    \21\Id. at 7.
    \22\Id.
---------------------------------------------------------------------------
    Mr. Guest stated:

          Collective bargaining is occurring on the Navajo 
        Nation, with private enterprise as well as government. 
        The United Mine Workers of America (``UMWA'') 
        represents employees at the Navajo Nation Head Start 
        Program, a tribal government program. The Nal-Nishii 
        Federation of Labor, AFL-CIO includes 12 labor 
        organizations that represent miners, power plant 
        workers, construction workers, school employees and 
        city employees working on or near the Navajo 
        Nation.\23\
---------------------------------------------------------------------------
    \23\Id. at 8.

    Indian tribes have also addressed labor rights through the 
California tribal labor relations ordinances. In his testimony, 
Mr. Guest also described how in 1999 Indian tribes negotiated 
tribal-state gaming compacts in California.\24\ A tribe would 
only qualify for the compact if it ``adopt[ed] a process for 
addressing union organizing and collective bargaining rights of 
tribal gaming employees.''\25\ The negotiations resulted in the 
drafting of a Model Tribal Labor Relations Ordinance 
(Ordinance), which tribes with 250 or more casino-related 
employees were required to adopt.\26\ The Ordinance is similar 
to the NLRA in many ways, including the right to organize and 
bargain collectively. However, the Ordinance also differs from 
the NLRA, with some differences favoring labor unions and some 
favoring Indian tribes.
---------------------------------------------------------------------------
    \24\Id. 
    \25\Id. 
    \26\Id. 
---------------------------------------------------------------------------
    Mr. Guest stated:

          The Ordinance provides labor unions at tribal gaming 
        facilities with a number of advantages not provided for 
        under the NLRA. Most importantly, under the Ordinance 
        unions at tribal casinos: (1) have the right to enter 
        onto casino property at any time to talk to employees 
        and post leaflets and posters there in order to 
        facilitate the organizing of employees; and (2) may 
        engage in secondary boycotts after an impasse is 
        reached in negotiations without suffering any penalty 
        under the Ordinance.
          The Ordinance also provides tribes with certain 
        advantages not enjoyed by employers under the NLRA. 
        Most importantly, unions representing tribal casino 
        employees may not strike, picket, or engage in boycotts 
        before an impasse is reached in negotiations.\27\
---------------------------------------------------------------------------
    \27\Id. at 9-10.

    These are but a few examples of labor and employment laws 
enacted by Indian tribes that are similar to the NLRA in 
protecting the rights of employees but differ from the NLRA in 
order to meet the specific needs of Indian tribes throughout 
the United States.

History of tribal sovereignty

    Originally, there were few limits on tribal sovereignty. In 
1823, the Supreme Court in Johnson v. M'Intosh held that Indian 
tribes had no power to grant or dispose of lands to anyone 
other than the federal government.\28\ In 1832, the Supreme 
Court in Worcester v. Georgia further indicated Indian tribes 
did not have the authority to deal with foreign powers.\29\ 
Aside from these limits, however, Indian tribes retained all 
the characteristics of independent sovereigns. The Supreme 
Court in Johnson stated Indian tribes ``were admitted to be the 
rightful occupants of the soil, with a legal as well as just 
claim to retain possession of it, and to use it according to 
their own discretion.''\30\ In 1831, in Cherokee Nation v. 
Georgia, the Supreme Court noted the Cherokees had ``the 
character of . . . a state, as a distinct political society 
separated from others, capable of managing its own affairs and 
governing itself.''\31\
---------------------------------------------------------------------------
    \28\21 U.S. (8 Wheat.) 543, 574 (1823). The Court stated that 
because of the European discovery of Indian lands, Indian tribes' 
``power to dispose of the soil at their own will, to whomsoever they 
pleased, was denied by the original fundamental principle, that 
discovery gave exclusive title to those who made it.'' Id.
    \29\31 U.S. (6 Pet.) 515, 559 (1832):
      The Indian nations had always been considered as distinct, 
independent political communities, retaining their original natural 
rights, as the undisputed possessors of the soil, from time immemorial, 
with the single exception of that imposed by irresistible power, which 
excluded them from intercourse with any other European potentate than 
the first discoverer of the coast of the particular region claimed: and 
this was a restriction which those European potentates imposed on 
themselves, as well as on the Indians.
    \30\21 U.S. (8 Wheat.) 543, 574 (1823).
    \31\30 U.S. (5 Pet.) 1, 16 (1831).
---------------------------------------------------------------------------

Applicability of labor laws to Indian tribes

    While tribal sovereignty has long been recognized, there 
has never been any doubt that Congress has the authority to 
enact limits. Congress can also choose to retain tribal 
sovereignty. Many federal labor laws specifically exclude 
Indian tribes from the definition of ``employer,'' including 
Title VII of the Civil Rights Act of 1964, Title I of the 
Americans with Disabilities Act, and the Worker Adjustment and 
Retraining Notification Act. In contrast, statutes of general 
application, including the Uniformed Services Employment and 
Reemployment Rights Act, Age Discrimination in Employment Act, 
Fair Labor Standards Act (FLSA), Family Medical Leave Act, 
Employee Retirement Income Security Act (ERISA), and 
Occupational Safety and Health Act (OSH Act), are silent 
regarding their application to Indian tribes. Federal courts 
have held that statutes of general application, such as the 
FLSA, ERISA, and the OSH Act, apply to Indian tribes and their 
businesses.\32\
---------------------------------------------------------------------------
    \32\See, e.g., Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009) 
(applying FLSA to a retail business located on an Indian reservation 
and owned by Indian tribal members); Smart v. State Farm Ins. Co., 868 
F.2d 929 (7th Cir. 1989) (applying ERISA to employee benefits plan 
established and operated by an Indian tribe for tribal employees); 
Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) 
(applying the OSH Act to construction company owned by the Indian tribe 
that only operates within the tribal reservation).
---------------------------------------------------------------------------
    However, there is a key distinction between these laws and 
the NLRA. These laws do not force Indian tribes into a binding 
relationship with a non-governmental third party.\33\ As 
Jefferson Keel, Lieutenant Governor for the Chickasaw Nation, 
stated in his testimony to the Subcommittee on Health, 
Employment, Labor, and Pensions, ``[W]e submit that the 
administrative imposition of a private labor model on any 
government, including a tribal government, is incompatible with 
the very nature of sovereignty and self-government.''\34\
---------------------------------------------------------------------------
    \33\See, e.g., 29 U.S.C. Sec. 158(d) (obligation of employer and 
union to bargain collectively).
    \34\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Jefferson Keel at 1) (emphasis added).
---------------------------------------------------------------------------

NLRB jurisdiction over Indian tribes

    For almost 30 years, the NLRB held that ``individual 
Indians and Indian tribal governments, at least on reservation 
lands, are generally free from state or even in most instances 
Federal intervention, unless Congress specifically provided to 
the contrary.''\35\ However, in 2004 in San Manuel Indian Bingo 
and Casino, the Board adopted a ``new approach to considering 
Indian owned and operated enterprises,''\36\ holding that the 
NLRB has jurisdiction over all tribal activities. Relying on 
San Manuel, the Board now asserts jurisdiction on a case-by-
case basis, depending on whether the activity is commercial or 
governmental in nature. In response to this unprecedented 
encroachment on tribal sovereignty, several members of Congress 
have introduced legislation to undo the precedent established 
under the San Manuel decision. Most recently, Rep. Todd Rokita 
(R-IN) introduced legislation to provide any enterprise or 
institution owned and operated by an Indian tribe and located 
on its land is not considered an employer, effectively 
excluding them from coverage of the NLRA.
---------------------------------------------------------------------------
    \35\Fort Apache Timber Co., 226 NLRB 503 (1976), overruled by San 
Manuel Indian Bingo and Casino, 341 NLRB No. 138 (2004).
    \36\341 NLRB 1055, 1064 (2004).
---------------------------------------------------------------------------
    From 1976 to 2004, the NLRB held that the location of an 
Indian business was determinative with respect to the NLRB's 
jurisdiction and that the text of the NLRA supported this 
location-based rule. In Fort Apache, the NLRB ruled the NLRA 
did not apply to a tribal government operating a timber mill on 
Indian land, finding the mill to be akin to a political 
subdivision of a state government and therefore exempt.\37\ In 
Sac and Fox Industries, Ltd., the Board found the NLRA 
applicable to off-reservation tribal enterprises, such as 
logging mills.\38\ Together, these cases created the ``on 
Indian lands/off Indian lands'' rule. If the Indian enterprise 
was located on Indian land generally, it was not subject to the 
NLRA, but those located off Indian land were subject to the 
NLRA.
---------------------------------------------------------------------------
    \37\Fort Apache, 226 NLRB at 506.
    \38\307 NLRB 241 (1992).
---------------------------------------------------------------------------
    In 2004 in San Manuel Indian Bingo and Casino, a divided 
NLRB reversed course. Relying on controversial dicta in Federal 
Power Commission v. Tuscarora Indian Nation stating that a 
``general statute in terms applying to all persons includes 
Indians and their property interests,''\39\ the NLRB held the 
NLRA applies to tribal governments, and federal Indian policy 
does not preclude application of the NLRA to commercial 
activities on tribal land.\40\ In deciding San Manuel, the NLRB 
noted the NLRA does not expressly exclude Indian tribes.\41\ 
Therefore, according to the NLRB, the issue is left to the 
Board's discretion. Now, relying on San Manuel, the Board would 
determine whether to assert jurisdiction based on the conduct 
at issue. Where the conduct is commercial in nature, employing 
significant numbers of non-Indians, and catering to non-Indian 
customers, the Board concluded that ``the special attributes of 
[tribal] sovereignty are not implicated.''\42\ In contrast, 
when tribes are acting with regard to the particularized sphere 
of traditional tribal or governmental functions, the Board 
indicated it should defer to the tribes by declining to assert 
its discretionary jurisdiction.\43\ Additionally, the Board 
would not assert jurisdiction if the application of the law 
would abrogate treaty rights or there was ``proof'' in the 
statutory language or legislative history that Congress did not 
intend the Act to apply to Indian tribes.\44\ Then-Member 
Schaumber strongly dissented, stating that ``rebalancing of 
competing policy interests involving Indian sovereignty is a 
task for Congress to undertake.''\45\ On appeal, the U.S. Court 
of Appeals for the District of Columbia Circuit upheld the 
NLRB's holding in San Manuel.\46\
---------------------------------------------------------------------------
    \39\362 US 99, 116 (1960). In his dissenting opinion in San Manuel, 
then-Member Schaumber argued this statement in Tuscarora Indian Nation 
is questionable dicta, lacks any foundation in Indian law, and has been 
abandoned, if not overruled, by the Supreme Court. 341 NLRB at 1070-74.
    \40\341 NLRB at 1057-62.
    \41\Id. at 1058. In fact, neither the text of the NLRA nor its 
legislative history reference coverage of Indian tribes.
    \42\Id. at 1062.
    \43\Id. at 1063.
    \44\Id. at 1059.
    \45\Id. at 1065 (Schaumber, Member, dissenting).
    \46\San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. 
Cir. 2007).
---------------------------------------------------------------------------
    In testimony before the Subcommittee on Health, Employment, 
Labor, and Pensions, Jefferson Keel, Lieutenant Governor of the 
Chickasaw Nation, criticized the NLRB's decision in San Manuel 
for diminishing tribal sovereignty. He stated:

          [The NLRB's San Manuel ruling] reversed seventy years 
        of settled administrative practice and signaled an 
        effort to expand federal administrative jurisdiction 
        over tribal sovereigns. . . . [The Board's] approach 
        had been widely criticized as contrary to established 
        federal law which presumes a statute does not apply to 
        abridge tribal sovereignty in the absence of express 
        evidence that Congress intended such a result. Turning 
        this settled rule of Indian law upside-down, the 
        Board's newly-fashioned analysis shifts the burden to 
        the tribal sovereign to show either that Congress 
        intended to exempt the tribe from the statutory scheme, 
        or that a tribe-specific element (such as intramural 
        affairs or a controlling treaty provision) limits the 
        Act's jurisdictional reach.\47\
---------------------------------------------------------------------------
    \47\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Jefferson Keel at 4) (emphasis in original).

    Rodney Butler, chairman of the Mashantucket Pequot Nation, 
similarly criticized San Manuel in his testimony before the 
---------------------------------------------------------------------------
subcommittee:

          The San Manuel decision was not only a complete 
        reversal of the NLRB's recognition of tribes as 
        sovereigns, it is also an affront to Indian Country. It 
        suggests that Indian tribes are incapable of developing 
        laws and institutions to protect the rights of 
        employees who work on our reservations. Our experience 
        proves nothing could be further from the truth.\48\
---------------------------------------------------------------------------
    \48\Id. (written testimony of the Hon. Rodney Butler at 2).

    Robert Odawi Porter, president of the Seneca Nation of 
Indians, also expressed concern in his testimony to the 
subcommittee about San Manuel's erosion of tribal sovereignty. 
He stated, ``Many aspects of our treaty-recognized freedoms 
have been eroded over time. A prime example of this legal 
regression can be found in recent tribal labor management 
decisions taken by the [NLRB] and the federal courts in the 
[San Manuel case].''\49\
---------------------------------------------------------------------------
    \49\Examining Proposals to Strengthen the National Labor Relations 
Act, supra note 1, at 8-9 (written testimony of the Hon. Robert Odawi 
Porter).
---------------------------------------------------------------------------
    Witnesses further testified to the subcommittee that tribal 
sovereignty includes parity with federal, state, and local 
governments, which San Manuel has undermined. Regarding the 
Mashantucket Pequot Nation, Chairman Butler stated, ``We seek 
to be treated just like every other sovereign under the NLRA--
nothing more--nothing less.''\50\ In his testimony, Richard 
Guest of the Native American Rights Fund similarly argued for 
equal treatment of governments:
---------------------------------------------------------------------------
    \50\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Rodney Butler at 2).

          [I]t is time for Congress to provide parity for 
        tribal governments under the NLRA. In this context, 
        parity encompasses the quality of being treated equally 
        under the law alongside Federal, State and Local 
        governments. Tribal governments are entitled to the 
        same freedom to choose the appropriate time, place and 
        manner for regulating union activity on Indian lands 
        and collective bargaining for its employees.\51\
---------------------------------------------------------------------------
    \51\Id. (written testimony of Richard Guest at 1-2) (emphasis 
omitted).

    Lieutenant Governor Keel also stated, ``All governments are 
entitled to equal respect under the law, precisely as Congress 
in 1935 intended.''\52\ In addition, regarding the Senecan 
Nation of Indians, President Porter noted, ``We have always 
insisted that federal law treat our tribal governments as it 
treats other governments.''\53\
---------------------------------------------------------------------------
    \52\Id. (written testimony of the Hon. Jefferson Keel at 1) 
(emphasis in original).
    \53\Examining Proposals to Strengthen the National Labor Relations 
Act, supra note 1, at 9 (written testimony of the Hon. Robert Odawi 
Porter).
---------------------------------------------------------------------------
    In 2007 in Foxwoods Resort Casino,\54\ the NLRB reinforced 
its decision in San Manuel. The Board noted that 98 percent of 
the Mashantucket Pequot Tribe's revenues were derived from the 
operation of the casino, which it used to fund various 
endeavors aimed toward promoting the tribal community and 
tribal self-government.\55\ However, the Board exerted 
jurisdiction because the casino was an exclusively commercial 
venture generating income for the tribe almost exclusively from 
the general public, competed in the same commercial arena with 
other non-tribal casinos, overwhelmingly employed non-tribal 
members, and actively marketed to the general public.\56\
---------------------------------------------------------------------------
    \54\No. 34-RC-2230 (Oct. 24, 2007) (decision and direction of 
election).
    \55\Id. at 4.
    \56\Id. at 13.
---------------------------------------------------------------------------
    In 2013 in Soaring Eagle Casino and Resort,\57\ the NLRB 
exerted jurisdiction over another Indian tribe. The Saginaw 
Chippewa Tribe operates a casino on the Isabella Reservation in 
Isabella County, Michigan. Treaties made in 1855 and 1864 with 
the federal government afford the Saginaw exclusive use, 
ownership, occupancy, and self-governance of a permanent 
homeland in Isabella County.\58\ Despite such strong treaty 
language, the NLRB, applying San Manuel, determined the general 
treaty language devoting land to a tribe's exclusive use was 
insufficient to preclude application of federal law.\59\ As 
such, the Board exerted jurisdiction and ordered the tribe to 
rehire an employee who had been fired for union organizing, pay 
four years of back pay, and post notices in the workplace 
admitting it had violated federal labor law and reiterating 
employees' rights to unionize.\60\
---------------------------------------------------------------------------
    \57\359 NLRB No. 92, 2013 WL 1646049 (2013), vacated (2014), aff'd, 
361 NLRB No. 73 (2014), aff'd, Soaring Eagle Casino and Resort v. NLRB, 
791 F.3d 648 (2015).
    \58\Soaring Eagle Casino and Resort, 2013 WL 1646049, *4.
    \59\Id. at *12.
    \60\Id. at *19.
---------------------------------------------------------------------------
    In contrast, on June 4, 2015, after years of litigation, 
the NLRB in Chickasaw Nation\61\ unanimously declined to assert 
jurisdiction. At issue in the case was whether the Chickasaw 
Nation, in its capacity as operator of the WinStar World 
Casino, is subject to the Board's jurisdiction. Applying San 
Manuel, the Board found the NLRA would abrogate treaty rights, 
specific to the Chickasaw Nation, contained in the 1830 Treaty 
of Dancing Rabbit Creek. As such, the Board declined to assert 
jurisdiction.\62\
---------------------------------------------------------------------------
    \61\362 NLRB No. 109, 2015 WL 3526096 (2015).
    \62\2015 WL 3526096, *3.
---------------------------------------------------------------------------
    Although the Board's decision in Chickasaw Nation 
recognized the tribe's rights as a government under the treaty, 
the decision only added to the uncertainty other Indian tribes 
face with respect to NLRA jurisdiction. In his testimony before 
the Subcommittee on Health, Employment, Labor, and Pensions, 
Lieutenant Governor Keel of the Chickasaw Nation stated:

          While the new Board ruling establishes an important 
        precedent in recognizing the Chickasaw Nation's tribal 
        rights as a government, it also creates enormous 
        uncertainty for other American Indian tribes across the 
        country whose treaty language (if any) may well differ 
        from the Chickasaw Nation's treaty language. Further, 
        it has the consequence of making the NLRB the arbiter 
        of tribal treaty rights, instead of Congress and the 
        Courts--even though the NLRB itself has repeatedly 
        acknowledged it possesses no expertise whatsoever in 
        Indian law or matters of tribal sovereignty.\63\
---------------------------------------------------------------------------
    \63\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Jefferson Keel at 4).

    In June of 2015, in NLRB v. Little River Band of Ottawa 
Indian Tribal Government, a divided U.S. Court of Appeals for 
the Sixth Circuit ruled the NLRB may apply the NLRA to a 
Michigan casino operating on tribal land.\64\ The majority held 
although the NLRA is silent on the issues, the statutory terms 
``employer'' and ``person'' both encompass Indian tribes.\65\ 
Additionally, the majority found nothing in federal Indian law 
forecloses application of the NLRA to the band's operation of 
its casino and regulation of its employees.\66\ Dissenting, 
Judge David McKeague argued principles of tribal sovereignty 
should leave the band free to regulate its own labor relations 
at the casino.\67\ In his testimony before the Subcommittee, 
Lieutenant Governor Keel cited the Sixth Circuit's decision 
upholding the Board's jurisdiction in Little River Band as 
evidence of the ``arbitrary risk that arises from shifting 
control over tribal sovereignty to a quasi-independent federal 
agency.''\68\
---------------------------------------------------------------------------
    \64\788 F.3d 537 (6th Cir. 2015).
    \65\Id. at 543.
    \66\Id. at 544-56.
    \67\Id. at 556 (McKeague, J., dissenting).
    \68\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Jefferson Keel at 4).
---------------------------------------------------------------------------

                              Conclusion 

    The cases described above illustrate the subjective nature 
of the Board's test and the need for statutory clarity with 
respect to NLRB jurisdiction over tribal enterprises. The 
Board, with no particular experience in federal Indian or 
treaty law, determines whether the NLRA would interfere with 
tribal sovereignty or abrogate treaty rights. Such a 
determination is highly subjective, leaving tribes covered by 
treaties with little certainty. Worse, sovereign tribes without 
treaties are almost certainly covered by the NLRA, creating 
different classes of tribes under the NLRA. The Tribal Labor 
Sovereignty Act of 2015 creates parity with the states and 
between tribes ensuring tribal sovereignty.

                      Section-by-Section Analysis 

    The following is a section-by-section analysis of the 
Amendment in the Nature of a Substitute offered by Rep. Rokita 
and reported favorably by the Committee.
    Section 1. Provides the short title is the ``Tribal Labor 
Sovereignty Act of 2015.''
    Section 2. Amends the National Labor Relations Act to 
exclude Indian tribes, and any enterprise or institution owned 
and operated by an Indian tribe and located on its Indian 
lands, from the definition of employer. Additionally, it 
defines the term Indian tribe, Indian, and Indian land.

                       Explanation of Amendments 

    The amendments, including the amendment in the nature of a 
substitute, are explained in the body of this report.

             Application of Law to the Legislative Branch 

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. H.R. 511, the Tribal Labor Sovereignty Act of 2015, 
protects tribal sovereignty and the right to tribal self-
governance. The bill codifies the standard of the NLRB prior to 
2004 by amending the NLRA to provide that any enterprise or 
institution owned and operated by an Indian tribe and located 
on its land is not considered an employer, excluding such from 
coverage of the NLRA.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the CBO letter.

                           Earmark Statement

    H.R. 511 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of House rule XXI.

                            Roll Call Votes 

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against. No record votes were taken on 
H.R. 511.

         Statement of General Performance Goals and Objectives 

    In accordance with clause (3)(c) of House rule XIII, the 
goals of H.R. 511 are to protects tribal sovereignty and the 
right to tribal self-governance.

                    Duplication of Federal Programs 

    No provision of H.R. 511 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The committee estimates that enacting H.R. 511 does not 
specifically direct the completion of any specific rule makings 
within the meaning of 5 U.S.C. 551.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the committee's oversight findings and recommendations are 
reflected in the body of this report.

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the committee has received 
the following estimate for H.R. 511 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 24, 2015.
Hon. John Kline,
Chairman, Committee on Education and the Workforce,
 House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 511, the Tribal 
Labor Sovereignty Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Anthony.
            Sincerely,
                                              Keith Hall, Director.
    Enclosure.

H.R. 511--Tribal Labor Sovereignty Act of 2015

    H.R. 511 would add tribes to the list of entities that are 
excluded from the definition of ``employer'' for purposes of 
the National Labor Relations Act. Through the National Labor 
Relations Board (NLRB), the National Labor Relations Act 
protects the rights of most private-sector employees to form a 
union and to bargain collectively. Adding tribes to the list of 
excluded employers would treat them similarly to state and 
local governments. Currently, the NLRB generally asserts 
jurisdiction over the commercial enterprises owned and operated 
by Indian tribes, even if they are located on a tribal 
reservation. However, the NLRB does not assert jurisdiction 
over tribal enterprises that carry out traditional tribal or 
governmental functions.
    Enacting H.R. 511 would not significantly affect the 
workload of the NLRB, so it would have no effect on the federal 
budget. The bill would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    H.R. 511 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA).
    By excluding tribal enterprises located on tribal land from 
the definition of employer for purposes of the National Labor 
Relations Act, the bill would eliminate the right of employees 
of such enterprises to file a claim, individually or through a 
union, regarding certain labor practices. Currently, employees 
may file a claim against tribal employers over which the NLRB 
asserts jurisdiction alleging unfair labor practices under the 
act that prohibit or interfere with collective activities to 
improve wages and working conditions. By eliminating the right 
of employees to file such claims with the NLRB, the bill would 
impose a private-sector mandate.
    The direct cost of the mandate would be the value of 
forgone monetary awards resulting from claims that would have 
been filed with the NLRB in the absence of the bill. According 
to the NLRB, it currently receives about 20,000 to 30,000 
claims in total each year from employees, unions, or employers 
alleging unfair labor practices and more than half of all 
claims are withdrawn or dismissed. Other claims may be settled 
by the parties or adjudicated by the NLRB. Successful claims 
may result in remedies such as reinstatement of discharged 
employees and back pay for the period of unemployment, as well 
as payment of dues, fines or other costs. In fiscal year 2014, 
claims with the NLRB resulted in about 2,400 cases in which 
employees were reinstated and in awards of about $45 million in 
back pay and other costs. In testimony, the NLRB indicated that 
it has asserted jurisdiction over tribal enterprises in four 
decisions since 2004. Based on those data, CBO estimates that 
the cost of the mandate would not be substantial and would fall 
below the annual threshold established in UMRA for private-
sector mandates ($154 million in 2015, adjusted annually for 
inflation).
    Successful claims filed with the NLRB also may result in a 
requirement on employers that would allow their employees to 
form a union and bargain collectively. Imposing such a 
requirement on employers may have a broader impact than that 
measured by the value of forgone monetary awards and 
settlements for claims brought before the NLRB. However, under 
UMRA that broader impact is not considered part of the direct 
cost of the mandate.
    On June 25, 2015, CBO provided a cost estimate for S. 248 
as ordered reported by the Senate Committee on Indian Affairs 
on June 10, 2015. The two bills are identical, and the 
estimated budgetary effect is the same. The private-sector 
mandate and the estimate of mandate costs is also the same. 
This estimate provides additional information about the basis 
of the estimate of mandate costs relative to annual threshold 
established in UMRA.
    The CBO staff contact for this estimate is Christina Hawley 
Anthony. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 511. However, 
clause 3(d)(2)(B) of that rule provides that this requirement 
does not apply when the committee has included in its report a 
timely submitted cost estimate of the bill prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

NATIONAL LABOR RELATIONS ACT

           *       *       *       *       *       *       *



                              definitions

  Sec. 2. When used in this Act--
  (1) The term ``person'' includes one or more individuals, 
labor organizations, partnerships, associations, corporations, 
legal representatives, trustees, trustees in cases under title 
11 of the United States Code, or receivers.
  (2) The term ``employer'' includes any person acting as an 
agent of an employer, directly or indirectly, but shall not 
include the United States or any wholly owned Government 
corporation, or any Federal Reserve Bank, or any State or 
political subdivision thereof, or any Indian tribe, or any 
enterprise or institution owned and operated by an Indian tribe 
and located on its Indian lands, or any person subject to the 
Railway Labor Act, as amended from time to time, or any labor 
organization (other than when acting as an employer), or anyone 
acting in the capacity of officer or agent of such labor 
organization.
  (3) The term ``employee'' shall include any employee, and 
shall not be limited to the employees of a particular employer, 
unless the Act explicitly states otherwise, and shall include 
any individual whose work has ceased as a consequence of, or in 
connection with, any current labor dispute or because of any 
unfair labor practice, and who has not obtained any other 
regular and substantially equivalent employment, but shall not 
include any individual employed as an agricultural laborer, or 
in the domestic service of any family or person at his home, or 
any individual employed by his parent or spouse, or any 
individual having the status of an independent contractor, or 
any individual employed as a supervisor, or any individual 
employed by an employer subject to the Railway Labor Act, as 
amended from time to time, or by any other person who is not an 
employer as herein defined.
  (4) The term ``representatives'' includes any individual or 
labor organization.
  (5) The term ``labor organization'' means any organization of 
any kind, or any agency or employee representation committee or 
plan, in which employees participate and which exists for the 
purpose, in whole or in part, of dealing with employers 
concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work.
  (6) The term ``commerce'' means trade, traffic, commerce, 
transportation, or communication among the several States, or 
between the District of Columbia or any Territory of the United 
States and any State or other Territory, or between any foreign 
country and any State, Territory, or the District of Columbia, 
or within the District of Columbia or any Territory, or between 
points in the same State but through any other State or any 
Territory or the District of Columbia or any foreign country.
  (7) The term ``affecting commerce'' means in commerce, or 
burdening or obstructing commerce or the free flow of commerce, 
or having led or tending to lead to a labor dispute burdening 
or obstructing commerce or the free flow of commerce.
  (8) The term ``unfair labor practice'' means any unfair labor 
practice listed in section 8.
  (9) The term ``labor dispute'' includes any controversy 
concerning terms, tenure or conditions of employment, or 
concerning the association or representation of persons in 
negotiating, fixing, maintaining, changing, or seeking to 
arrange terms or conditions of employment, regardless of 
whether the disputants stand in the proximate relation of 
employer and employee.
  (10) The term ``National Labor Relations Board'' means the 
National Labor Relations Board provided for in section 3 of 
this Act.
  (11) The term ``supervisor'' means any individual having 
authority, in the interest of the employer, to hire, transfer, 
suspend, lay off, recall, promote, discharge, assign, reward, 
or discipline other employees, or responsibly to direct them, 
or to adjust their grievances, or effectively to recommend such 
action, if in connection with the foregoing the exercise of 
such authority is not of a merely routine or clerical nature, 
but requires the use of independent judgment.
  (12) The term ``professional employee'' means--
          (a) any employee engaged in work (i) predominantly 
        intellectual and varied in character as opposed to 
        routine mental, manual, mechanical, or physical work; 
        (ii) involving the consistent exercise of discretion 
        and judgment in its performance; (iii) of such a 
        character that the output produced or the result 
        accomplished cannot be standardized in relation to a 
        given period of time; (iv) requiring knowledge of an 
        advanced type in a field of science or learning 
        customarily acquired by a prolonged course of 
        specialized intellectual instruction and study in an 
        institution of higher learning or a hospital, as 
        distinguished from a general academic education or from 
        an apprenticeship or from training in the performance 
        of routine mental, manual, or physical processes; or
          (b) any employee, who (i) has completed the courses 
        of specialized intellectual instruction and study 
        described in clause (iv) of paragraph (a), and (ii) is 
        performing related work under the supervision of a 
        professional person to qualify himself to become a 
        professional employee as defined in paragraph (a).
  (13) In determining whether any person is acting as an 
``agent'' of another person so as to make such other person 
responsible for his acts, the question of whether the specific 
acts performed were actually authorized or subsequently 
ratified shall not be controlling.
  (14) The term ``health care institution'' shall include any 
hospital, convalescent hospital, health maintenance 
organization, health clinic, nursing home, extended care 
facility, or other institution devoted to the care of sick, 
infirm, or aged person.
  (15) The term ``Indian tribe'' means any Indian tribe, band, 
nation, pueblo, or other organized group or community which is 
recognized as eligible for the special programs and services 
provided by the United States to Indians because of their 
status as Indians.
  (16) The term ``Indian'' means any individual who is a member 
of an Indian tribe.
  (17) The term ``Indian lands'' means--
          (A) all lands within the limits of any Indian 
        reservation;
          (B) any lands title to which is either held in trust 
        by the United States for the benefit of any Indian 
        tribe or individual or held by any Indian tribe or 
        individual subject to restriction by the United States 
        against alienation; and
          (C) any lands in the State of Oklahoma that are 
        within the boundaries of a former reservation (as 
        defined by the Secretary of the Interior) of a 
        federally recognized Indian tribe.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              Introduction

    The Tribal Labor Sovereignty Act of 2015 (H.R. 511) strips 
workers of their rights to organize and collectively bargain at 
any enterprise owned and operated by an Indian tribe that is 
located on tribal lands. It does this by excluding such tribal 
enterprises from the jurisdiction of the National Labor 
Relations Act by amending the definition of a covered 
``employer.''
    This bill arises in a dispute between two solemn and 
competing principles: the rights that Indian tribes possess as 
``distinct, independent political communities, retaining their 
original natural rights in matters of local self-
government,''\1\ and the right of workers to organize, bargain 
collectively, and engage in concerted activities for mutual aid 
and protection.
---------------------------------------------------------------------------
    \1\Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).
---------------------------------------------------------------------------
    Rather than attempting to reconcile these competing 
interests, H.R. 511 chooses sovereignty for some over the 
rights of others, and it strips hundreds of thousands of 
workers--most of whom are not members of tribes--of their voice 
in the workplace in one fell swoop just because they happen to 
work at a tribal enterprise on tribal lands.
    As the AFL-CIO has noted, ``workers cannot not 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 enterprises.''
    This bill, which enjoys the support of the U.S. Chamber of 
Commerce, cloaks its anti-union agenda in the respectable garb 
of tribal sovereignty. It is another attempt in the quest to 
dismantle labor unions and strip workers of their ability to 
bargain for better pay and working conditions.

   HISTORY OF NLRB JURISDICTION CONCERNING INDIAN TRIBAL ENTERPRISES

    The National Labor Relations Act (NLRA) is silent with 
respect to its applicability to tribal enterprises. Prior to 
2004, the National Labor Relations Board (NLRB) did not 
exercise jurisdiction over enterprises located on tribal 
lands,\2\ but did do so for tribal enterprises located off 
tribal lands.\3\ This bright-line geographic test was both 
over-inclusive and under-inclusive. For example, this test 
allowed the NLRB to assert jurisdiction over an off-reservation 
hospital run by a tribal consortium primarily serving tribal 
members--a function of tribal self-governance and should have 
been excluded from coverage.\4\ But the test also failed to 
include commercial enterprises on tribal lands where the 
majority of employees were not tribal members, the majority of 
its customers were not members of the tribe, and its functions 
did not touch on essential matters of self-governance.
---------------------------------------------------------------------------
    \2\In the 1976 Fort Apache Timber Co. case, the Board declined to 
assert jurisdiction, holding that sovereign tribal governments, 
including a tribe's ``self-directed enterprise on the reservation,'' 
were ``implicitly exempt'' from the NLRA's definition of ``employer.'' 
226 NLRB 503, 504-06 (1976).
    \3\Unlike the enterprise at issue in Fort Apache Timber, Co., the 
Board ruled in 1992 that a tribally-owned and controlled factory 
operated off of the reservation was subject to NBLRB jurisdiction. Sac 
& Fox Industries, 307 NLRB 241 (1992).
    \4\Yukon-Kuskokwim Health Corp. v. N.L.R.B., 328 NLRB No.86 (1999), 
remanded, 234 F.3d 714 (D.C. Cir. 2000).
---------------------------------------------------------------------------

     THE 2004 NLRB'S DECISION IN THE SAN MANUEL CASE IS ROOTED IN 
LONGSTANDING JUDICIAL DOCTRINE REGARDING LAWS OF GENERAL APPLICABILITY 
                            TO INDIAN TRIBES

    In 2004, during the Bush Administration, the NLRB altered 
its jurisdictional test over tribal enterprises in the San 
Manuel Indian Bingo and Casino case. A 4-1 majority that was 
led by former Republican Chair Robert Battista asserted NLRA 
jurisdiction over tribal enterprises, except where doing so 
would:
          1) touch on tribal rights of self-governance in 
        purely intramural matters;
          2) abrogate rights guaranteed by an Indian treaty; or
          3) be contrary to congressional intent as indicated 
        in the legislative history or statutory language.
    The San Manuel decision is rooted in longstanding judicial 
doctrine used to determine when federal statutes of general 
applicability should apply to Indian tribes:
     The Supreme Court stated in the 1960 Tuscarora 
Indian Nation case that ``it is now well settled by many 
decisions of this Court that a general statute in terms 
applying to all persons includes Indians and their property 
interests.''\5\
---------------------------------------------------------------------------
    \5\FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960).
---------------------------------------------------------------------------
     Narrowing that doctrine, a 1985 Ninth Circuit 
Court of Appeals case known as Donovan v Coeur d'Alene Tribal 
Farm\6\ determined that the Occupational Safety and Health 
Administration (OSHA) had jurisdiction to enforce federal 
health and safety laws at a farm operated by a tribe and 
located on a tribe's reservation provided that the law did not: 
1) touch on tribal rights of self-governance in purely 
intramural matters; 2) abrogate rights guaranteed by Indian 
treaty; or 3) be contrary to congressional intent as indicated 
in the legislative history or statutory language. In applying 
this test, the Court stated:
---------------------------------------------------------------------------
    \6\Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 
1985).

          ``The operation of a farm that sells produce on the 
        open market and in interstate commerce is not an aspect 
        of tribal self-government. Because the Farm employs 
        non-Indians as well as Indians, and because it is in 
        virtually every respect a normal commercial farming 
        enterprise, we believe that its operation free of 
        federal health and safety regulations is neither 
        profoundly intramural . . . nor essential to self-
---------------------------------------------------------------------------
        government.''

    Using the same three-prong test in Coeur d'Alene, the 
NLRB's San Manuel decision carefully balances tribal 
sovereignty and the fundamental right of workers to organize. 
The Coeur d'Alene framework has since been applied by the 
Second, Sixth, Seventh, Ninth, and Eleventh Circuits.\7\
---------------------------------------------------------------------------
    \7\Soaring Eagle Casino & Resort v. NLRB (July 1, 2015) granted the 
NLRB jurisdiction based on 6th Circuit precedent involving another 
tribal casino (NLRB v. Little River Band of Ottawa Indians Tribal 
Government (June 9, 2015)); however, the majority in the Soaring Eagle 
case disputed whether the Coeur d'Alene framework is the proper basis 
for determining whether federal statutes of general applicability 
should apply to Indian tribes.
---------------------------------------------------------------------------

NLRB POLICY BALANCES TRIBAL SOVEREIGNTY AND WORKERS' RIGHTS TO ORGANIZE 
                              AND BARGAIN

    In the San Manuel decision, the NLRB singled out its desire 
``to balance the Board's interest in effectuating the policies 
of the Act with its desire to accommodate the unique status of 
Indians in our society and legal culture.''\8\ The Board noted 
that when a tribe ``is fulfilling traditionally tribal or 
government functions'' that do not involve ``non-Indians or 
substantially affect interstate commerce,'' then ``the Board's 
interest in effectuating the policies of the NLRA is likely to 
be lower.''
---------------------------------------------------------------------------
    \8\San Manuel Indian Bingo and Casino, 341 NLRB 1055, 1062 (2004) 
(Chairman Battista and Members Liebman and Walsh; Member Schaumber, 
dissenting), enforced, 475 F.3d 1306 (D.C. Cir. 2007).
---------------------------------------------------------------------------
    Thus, the NLRB has found that some enterprises--such as a 
health clinic that serves primarily tribal members-- are not 
suitable for federal jurisdiction where it is ``fulfilling the 
Federal Government's trust responsibility to provide free 
health care to Indians.''\9\ The NLRB likewise decided that it 
lacked authority to assert jurisdiction over a casino run by 
the Chickasaw tribe in Oklahoma, because doing so would 
abrogate an 1830 treaty which exempted the tribe from federal 
laws unless they involved ``legislation over Indian 
Affairs''.\10\ Both the tribal health clinic and the Chickasaw 
Tribe casino decisions block NLRB jurisdiction because these 
enterprises fall within one of the 3 exceptions articulated in 
Coeur d'Alene.
---------------------------------------------------------------------------
    \9\Yukon Kuskolcwim Health Corp., 341 NLRB 1075 (2004) (on remand 
from the D.C. Circuit, 234 F.3d 714 (2000)).
    \10\Chickasaw Nation d/b/a Winstar World Casino, 362 NLRB No. 109 
(June 4, 2015).
---------------------------------------------------------------------------
    Using this same 3 prong test, the NLRB has exercised 
jurisdiction to protect worker rights guaranteed under the NLRA 
which involve casinos patronized and operated overwhelmingly by 
non-tribal members, because neither treaty rights, nor 
essential self-governance matters, were implicated.'' \11\
---------------------------------------------------------------------------
    \11\See, e.g., Little River Band of Ottawa Indians Tribal Gov't, 
361 NLRB No. 45 (Sept. 15, 2014), enforced No. 14-2239 2015 WL 3556005 
(6th Cir. June 9,2015); Casino Pauma, 362 NLRB No. 52 (Mar. 31, 2015); 
Soaring Eagle Casino & Resort, An Enterprise of the Saginaw Chippewa 
Indian Tribe, 361 NLRB No. 73 (Oct. 27, 2014); Mashantucket Pequot 
Gaming Enterprise d/b/a Fox-woods Resort Casino, 353 NLRB No. 32 (2008)
---------------------------------------------------------------------------

TRIBAL ENTERPRISES ARE GOVERNED BY OTHER EMPLOYMENT LAWS, BUT H.R. 511 
 ONLY SINGLES OUT WORKERS' RIGHTS TO ORGANIZE UNIONS AND COLLECTIVELY 
                                BARGAIN

    Tribal sovereignty is not absolute with respect to federal 
laws of general applicability. Using the Coeur d'Alene 
framework, numerous courts have upheld the applicability of 
other federal employment laws to Indian tribes including:
     Fair Labor Standards Act (FLSA)\12\
---------------------------------------------------------------------------
    \12\Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009). (The overtime 
provisions of the Fair Labor Standards Act apply to a retail business 
located on an Indian reservation and owned by Indian tribal members).
---------------------------------------------------------------------------
     Occupational Safety and Health Act (OSHA)\13\
---------------------------------------------------------------------------
    \13\Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2nd Cir. 
1996) (applying OSHA to a tribe-operated construction business).
---------------------------------------------------------------------------
     Employee Retirement Income Security Act 
(ERISA)\14\
---------------------------------------------------------------------------
    \14\Smart v. State Farm Ins., 868 F.2d 929 (7th Cir. 1989) 
(concluding ERISA applied to a health center owned and operated by an 
Indian tribe on its reservation). Also: Lumber Industry Pension Fund v. 
Warm Springs Forest Products Industries, 939 F.2d 683 (9th Cir. 1991). 
(Permitting the pension fund to sue the tribally-operated mill under 
ERISA will not usurp the tribe's decision-making powers).
---------------------------------------------------------------------------
     Title III (public accommodations) of the Americans 
with Disabilities Act (ADA)\15\
---------------------------------------------------------------------------
    \15\Florida Paraplegic Association v. Miccosukee Tribe of Florida, 
166 F.3d 1126 (11th Cir. 1999) (Affirming that Title III of the 
Americans with Disability Act applies to restaurant and gaming facility 
operated by an Indian tribe).
---------------------------------------------------------------------------
    Thus, the effort to focus solely on the National Labor 
Relations Act to the exclusion of other federal labor laws, 
suggests that animus toward labor unions motivates this 
legislation--which has been wrapped in the laudable garb of 
sovereignty.

 PARITY AND SOVEREIGNTY ARE NOT VALID GROUNDS FOR TAKING AWAY WORKERS' 
RIGHTS, ESPECIALLY WHERE TRIBES ARE EXEMPTED FROM LABOR LAWS THAT COVER 
                      STATE AND LOCAL GOVERNMENTS

    Proponents' primary argument in favor of H.R. 511 is that 
the NLRA does not apply to state and local governments, and 
tribes should have parity since they are also a sovereign 
government. Under this principle, tribes contend that they 
should be able to decide whether to allow employees to form 
unions or not under a tribal labor relations ordinance, just as 
state governments are free to decide whether to allow public 
employees to form unions or not. This parity argument falls 
short in three important ways:
    1) Tribal casinos and similar businesses are commercial 
enterprises in direct competition with similar non-tribal 
businesses. Although these enterprises raise revenues for the 
tribe, these are not inherently governmental functions. Thus, 
the NLRB's regulation of labor relations does not impair an 
essential element of the tribe's sovereignty, especially in 
matters where the majority of employees are not tribal members. 
Courts have found that the total impact on tribal sovereignty 
from NLRA jurisdiction is ``not sufficient to demand a 
restrictive construction of the NLRA.''\16\
---------------------------------------------------------------------------
    \16\San Manuel Indian Bingo and Casino, 475 F.3d 1306 (D.C. Cir. 
2007).
---------------------------------------------------------------------------
    2) Approximately 75% of the 600,000 employees of tribal 
casinos are non-Indians.''\17\ Employees of tribal enterprises, 
who are not enrolled members of the tribe, are prohibited from 
having any voice or the right to advocate for the establishment 
or repeal of labor and employment laws, unlike comparable 
employment in local or state government. Since the majority of 
employees at tribal enterprises lack parity with the rights 
enjoyed by state and local government employees to petition 
their employer, the parity argument between tribal government 
and state and local government lacks a valid basis.
---------------------------------------------------------------------------
    \17\Dwanna L. Robertson, The Myth of Indian Casino Riches, Indian 
Country Today Media Network (June 23, 2012) http://
indiancountrytodaymedianetwork.com/2012/06/23/myth-indian-casino-
riches.
---------------------------------------------------------------------------
    3) Tribes are exempted from employment laws which apply to 
state and local governments. State and local governments are 
covered by Title VII of the Civil Rights Act and the 
nondiscrimination provisions of the Americans with Disabilities 
Act, whereas Indian tribes are expressly exempted from 
coverage. If tribes want parity with state and local 
governments, they should be prepared to be covered by the same 
federal statutes as those applicable to local and state 
governments.

 STRIPPING WORKERS' RIGHTS AND REMEDIES CAN LEAD TO LEGALLY SANCTIONED 
                          WORKER EXPLOITATION

    As noted above, Title VII of the Civil Rights Act prohibits 
employment discrimination by all governments except tribal 
governments and enterprises. As a result, employees of a tribal 
enterprise who are subjected to sexual harassment or other 
forms of discrimination cannot bring a claim to the Equal 
Employment Opportunity Commission (EEOC) or in federal courts--
even when the alleged perpetrator and victim are both non-
tribal members employed at the tribal enterprise.
    For example, a woman who took a job with a ``swamp safari'' 
run by a tribe in Florida filed suit against the tribe after 
her employers ``repeatedly touched her, made sexual comments 
and degrading remarks, and even suggested that she could make a 
`quick $10,000' from a wealthy client.''\18\ The U.S. District 
Court for the Southern District of Florida dismissed her case 
for lack of subject matter jurisdiction, citing the tribe's 
sovereign immunity. She was not affiliated with the tribe and 
had no further recourse.
---------------------------------------------------------------------------
    \18\Scott D. Danahy, License to Discriminate: The Application of 
Sovereign Immunity to Employment Discrimination Claims Brought By Non-
Native American Employees of Tribally Owned Businesses, 25 Fla. S. Law 
Rev. 679 (1998).
---------------------------------------------------------------------------
    In another case, several female former employees of Thunder 
Valley, a tribal casino in northern California, filed a class-
action discrimination lawsuit in 2005. One woman reported 
having been sexually assaulted by a casino executive. A second 
woman reported that the same executive fondled and forcibly 
kissed her as well. Several other women reported suffering 
sexual harassment, age and sex discrimination, and wrongful 
termination. None of the plaintiffs were tribal members, nor 
was the alleged attacker. Regardless, their case was dismissed 
for lack of subject-matter jurisdiction and because of tribal 
sovereign immunity.\19\
---------------------------------------------------------------------------
    \19\Shivani Sutaria, Employment Discrimination in Indian-Owned 
Casinos: Strategies to Providing Rights and Remedies to Tribal Casino 
Employees, 8 J. Law & Social Challenges 132 (2006).
---------------------------------------------------------------------------
    An hourly worker--an enrolled member of the Pomo Tribe--who 
is employed at a tribal casino in Sonoma County, California 
testified before the Education and the Workforce Committee that 
without NLRA protections workers felt they had no recourse to 
address sexual harassment. He stated:

          ``I have seen sexual harassment at the casino. A 
        general manager going up to women telling them if they 
        want promotions they had to sleep with him. The women 
        were fired. We all complained. Managers at the Stations 
        Casinos [which was managing the casino on behalf of the 
        tribe] told us it was a sovereign nation.
          It was bad enough that Title VII of the Civil Rights 
        Act doesn't apply to Native businesses. Congress should 
        not make the situation worse by taking away protections 
        under the National Labor Relations Act. The NLRA 
        enables workers who have been subjected to harassment 
        and other forms of discrimination to get together and 
        complain about it. Take away the NLRA, you don't only 
        have sexual harassment but no ability to speak about 
        it.''\20\
---------------------------------------------------------------------------
    \20\Oral testimony of Gary Navarro, Legislative Hearing on H.R. 
511, the Tribal Labor Sovereignty Act of 2015, Committee on Education 
and the Workforce, U.S. House of Representatives, June 16, 2015.

    Carving tribes out of Title VII coverage led directly to 
these unjust results. Similarly, carving tribes out of the NLRA 
may give rise to new forms of legally-sanctioned worker 
exploitation.

 H.R. 511 WOULD JEOPARDIZE THE ENFORCEMENT OF EXISTING LABOR CONTRACTS 
           AND UNDERMINE ESTABLISHED BARGAINING RELATIONSHIPS

    Thousands of employees at commercial tribal enterprises--
such as casinos--are currently covered by collective-bargaining 
agreements. If H.R. 511 were enacted, it is doubtful these 
labor contracts would remain fully enforceable. When a labor 
contract expires, a tribe could unilaterally terminate the 
established bargaining relationship with the union without 
legal consequence. Without a union, these jobs will likely 
revert to low-wage service jobs, instead of being jobs that 
allow workers to climb the ladder to the middle class.

   UNION AGREEMENTS HELP HOURLY SERVICE WORKERS ESCAPE LOW WAGES AND 
                 BENEFITS AT TRIBAL GAMING ENTERPRISES

    Most Indian casinos are large scale commercial operations, 
which overwhelmingly employ non-Indians and serve non-Indian 
customers. There were 449 tribal gaming facilities in 28 
states, which earned more than $28 billion in revenue in 
2013.\21\ An estimated 43% of all legal gaming revenues in the 
U.S. is now generated at tribally-owned casinos.
---------------------------------------------------------------------------
    \21\Indian Gaming: Regulation and Oversight by the Federal 
Government, States, and Tribes, U.S. Government Accountability Office, 
GAO-15-355 (2015), http://www.gao.gov/assets/680/670603.pdf; NIGC 
Tribal Gaming Revenues, National Indian Gaming Commission, http://
www.nigc.gov/Link_Click.aspx?fileticket=15QAX4uZyA%3d&tabid;=67.
---------------------------------------------------------------------------
      According to a 2013 report by UNITE HERE, the 
average low-wage California tribal casino worker makes $10.02 
per hour or $20,841 annually. At this level, a family of four 
with one breadwinner would be living at 88% of the federal 
poverty level.
      UNITE HERE, which represents over 10,000 casino 
workers in California, reports that workers with collective 
bargaining agreements earned $7,558 (41%) more in combined 
wages and health insurance benefits than the industry average 
in California.\22\
---------------------------------------------------------------------------
    \22\The Emerging Standard: An Analysis of Job Quality in 
California's Tribal Gaming Industry, UNITE HERE (October 2013).
---------------------------------------------------------------------------
      Where unions have organized at casinos in 
California, workers formerly trapped in poverty level jobs now 
have a foothold to get into the middle class as their wages 
have increased, their health care costs have declined, and the 
number of families requiring government assistance for health 
care has decreased significantly.
    Tribal casinos are not obligated to obey state minimum wage 
laws, which have a negative impact on casino workers in states 
where the minimum wage is higher than the federal minimum wage. 
Unions help close that gap.

THE CONGRESSIONAL BUDGET OFFICE (CBO) DETERMINED THAT ENACTMENT OF H.R. 
    511 WOULD HAVE AN ADVERSE ECONOMIC IMPACT ON WORKERS AT TRIBAL 
                              ENTERPRISES

    The Congressional Budget Office found that ``[B]y excluding 
tribal enterprises located on tribal land from the definition 
of employer for purposes of the National Labor Relations Act, 
the bill would eliminate the right of employees of such 
enterprises to file a claim, individually or through a union, 
regarding certain labor practices. Currently, employees may 
file a claim against tribal employers over which the NLRB 
asserts jurisdiction alleging unfair labor practices under the 
act that prohibit or interfere with collective activities to 
improve wages and working conditions. By eliminating the right 
of employees to file such claims with the NLRB, the bill would 
impose a `private-sector mandate''' on such workers under the 
Unfunded Mandates Reform Act.
    CBO found employees of tribal enterprises are burdened with 
economic costs under H.R. 511, which include ``the value of 
forgone monetary awards resulting from claims that would have 
been filed with the NLRB in the absence of the bill'' including 
a ``reinstatement of discharged employees and back pay for the 
period of unemployment.''\23\ CBO noted that by eliminating the 
right of employees ``to form a union and bargain collectively'' 
there would be a broader adverse impact, but CBO did not 
consider this broader impact to be part of the direct cost of 
the mandate.
---------------------------------------------------------------------------
    \23\Congressional Budget Office Cost Estimate for the Tribal Labor 
Sovereignty Act of 2015 (H.R. 511), August 24, 2015, https://
www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/
hr511.pdf.
---------------------------------------------------------------------------

 TRIBAL LABOR RELATIONS ORDINANCES ARE NOT AN ADEQUATE ALTERNATIVE TO 
               NLRA JURISDICTION ABSENT MINIMUM STANDARDS

    Proponents of H.R. 511 point to the adoption of Tribal 
Labor Relations Ordinances (TLRO) by some tribes as evidence 
that there is an adequate alternative for the protections 
offered by NLRA that will preserve tribal sovereignty.
    Some tribes have been required to adopt TLROs, such as 
those in California, where the state has required TLROs as a 
condition of state-tribal gaming compacts under the Indian 
Gaming Regulatory Act. Tribes in other states have negotiated 
TLROs with unions who had first won recognition under the NLRA. 
However, other tribes in other states have chosen not to adopt 
a TLRO at all, because there was no requirement under a state 
compact. Each tribe enacts its own labor-management relations 
laws, if at all, without transparency or political 
accountability to non-tribal members employed by its commercial 
businesses. Moreover, there is no uniform set of rights and 
responsibilities for employers and workers that have to be 
included in tribal labor ordinances. Many TLRO's provide 
inadequate protections, and the field is marked by widespread 
inconsistency in the protection of rights, for example:
      The Fair Employment Practices Code of the Little 
River Band of Ottowa Indians in Michigan requires labor 
organizations to apply for and obtain a license from the tribe 
before organizing; it precludes bargaining over layoffs or 
recall of employees; and gives the Tribal Court exclusive 
authority over disputes involving the duty to bargain in good 
faith, which are not subject to appeal. These and other 
requirements severely limit freedom of association.
      The United Auto Workers (UAW) and three other 
unions reached an agreement with the Mashantucket Pequot Tribe 
at the Foxwoods Casino regarding the terms of a TLRO, which 
governs their collective bargaining relationship. However, this 
mutually agreeable TLRO would not have been established, except 
for the fact that the UAW had petitioned for and won an NLRB 
election to represent workers at the casino. If H.R. 511 were 
enacted, and the Tribe then chose to reinstate restrictive 
labor laws that it had previously adopted, there would be no 
legal or political recourse for the workers--the overwhelming 
majority of whom do not belong to the Mashantucket Pequot 
Tribe.
     Tribes must adopt a TLRO under their compact 
between the State of California and tribal casinos with more 
than 250 employees. While there are a number of similarities 
between the California TLRO and the NLRA, the tribes can 
restrict workers' choices when voting which union they want to 
select; long established rights to display union buttons while 
at work are prohibited; and unfair labor practices are 
adjudicated through a standing panel of 10 arbitrators rather 
than a labor relations agency. On the other hand, some compacts 
include neutrality agreements which allow for card check 
recognition instead of secret-ballot elections, and waive 
sovereign immunity to allow unions to seek enforcement of 
arbitration decisions in state court. However, if a tribe fails 
to adopt an acceptable TLRO, only the State of California has 
enforcement rights.
    There is no federal requirement that TLROs must be at least 
as effective as the rights and remedies provided under federal 
labor law. If TLROs are to serve as a nationwide alternative to 
the NLRA, there will need to be statutory minimum standards and 
each TLRO would need to be assessed by a competent authority to 
ensure that workers' rights are substantially the same as those 
under the NLRA, even if they are not identical in all respects.

  THE U.S. REQUIRES ITS TRADING PARTNERS TO IMPLEMENT INTERNATIONALLY 
  RECOGNIZED LABOR STANDARDS, BUT H.R. 511 EXEMPTS U.S. WORKERS WHEN 
                        EMPLOYED BY INDIAN TRIBE

    This bill advances a double standard: it deprives workers 
of the right to organize and bargain collectively at commercial 
enterprises operated by Indian tribes, while the U.S. 
government insists that our international trading partners 
abide by these same core rights as a way to create a level 
playing field for U.S. workers. As a member of the 
International Labor Organization (ILO), the United States is 
obligated to respect and promote the rights outlined in the ILO 
Declaration on Fundamental Principles and Rights at Work, 
including:
           Freedom of association and the effective 
        recognition of the right to collective bargaining;
           Elimination of all forms of forced or 
        compulsory labor;
           Effective abolition of child labor; and
           Elimination of discrimination in respect of 
        employment and occupation.
    When negotiating with potential trading partners, Democrats 
and Republicans alike have insisted that other fully-sovereign 
nations adopt laws that would implement the core ILO standards. 
The U.S. Congress has ratified four free trade agreements--with 
Peru, Panama, Colombia and the Republic of Korea--which 
includes these rights and provides for dispute resolution for 
violations. Yet within our own borders, H.R. 511 would strip 
hundreds of thousands of the right to freedom of association 
and the right to collective bargaining at Indian tribal 
enterprises.
    In short, H.R. 511 ``repudiate[s] fundamental human rights 
that belong to every worker in every nation.''\24\
---------------------------------------------------------------------------
    \24\Legislative Alert from the AFL CIO, July 21, 2015, regarding 
the Tribal Labor Sovereignty Act (H.R. 511).
---------------------------------------------------------------------------

  THE TRIBAL LABOR SOVEREIGNTY ACT OF 2015 (H.R. 511) WILL ADVERSELY 
                           AFFECT THE ECONOMY

    Committee Democrats have advanced policies to increase 
opportunity and reduce income inequality. One of the most 
effective tools to reduce income inequality is the right to 
organize and collectively bargain for better wages and working 
conditions. By providing workers with bargaining power, workers 
can reconnect the historical linkage between productivity and 
wage growth.
    Weakening collective bargaining rights for workers employed 
at tribal enterprises would exacerbate the well documented pay-
productivity gap that has persisted for the past 40 years. 
Between 1948 and 1973, productivity increased 96.7% while wages 
for the typical worker increased 91.3% in inflation adjusted 
terms. However, between 1973 and 2013, productivity increased 
74.4% while compensation for the typical worker only increased 
9.2%.\25\ The broken link between productivity and pay is one 
reason for persistent wage stagnation in our economy.
---------------------------------------------------------------------------
    \25\The Erosion of Collective Bargaining Has Widened the Gap 
Between Productivity and Pay, David Cooper and Lawrence Mishel, 
Economic Policy Institute (January 6, 2015). http//www.epi.org/
publication/collective-bargainings-erosion-expanded-the-productivity-
pay-gap/.
---------------------------------------------------------------------------
    Workers with collective bargaining agreements have better 
wages, more access to benefits, and safer working conditions. 
For example, 95% of employees have access to employer-provided 
health care versus 64% of non-union workplaces. Additionally, 
94% of unionized workers last year have access to retirement 
benefits through employers, compared to 64% at nonunion 
workplaces.\26\ These trends hold true in workplaces across the 
country, but are especially pertinent in the casino and gaming 
industry, which H.R. 511 would overwhelmingly affect.
---------------------------------------------------------------------------
    \26\Employee Benefits in the United States, New Release, Bureau of 
Labor Statistics, July 24, 2015.
---------------------------------------------------------------------------

PREVIOUS HOUSE CONSIDERATION OF LEGISLATION TO BLOCK NLRB JURISDICTION 
                        OVER TRIBAL ENTERPRISES

    Floor amendments were offered to both the Fiscal Year 2005 
and the 2006 House Labor, HHS Appropriations Acts which would 
have blocked the NLRB from enforcing the San Manuel decision. 
These amendments, which were offered by Representative J.D. 
Hayworth, were twice rejected on roll call votes: 225 to 187 on 
September 9, 2004, and 256 to 146 on June 24, 2005.\27\
---------------------------------------------------------------------------
    \27\Congressional Record, September 9, 2004, pp. H.6951-6952 and 
June 24, 2005, pp. H.5153.
---------------------------------------------------------------------------

                               AMENDMENTS

    No Democratic amendments were offered at the July 22, 2015 
markup.

 H.R. 511 IS UNNECESSARY BECAUSE THE NATIONAL LABOR RELATIONS BOARD'S 
    CURRENT APPROACH BALANCES TRIBAL SOVEREIGNTY AND WORKERS' RIGHTS

    This legislation is not needed, because the NLRB's case-by-
case approach balances two competing principles--protection of 
workers' rights and the preservation of tribal sovereignty. The 
bill's all-or-nothing approach is too sweeping, and there is no 
principled basis for excluding hundreds of thousands of workers 
from coverage under labor laws just because they happen to work 
in a commercial enterprise on tribal lands.
    This bill cloaks an anti-union agenda in the respectable 
garb of tribal sovereignty. It is another attempt in the 
Majority's quest to dismantle labor unions and strip workers of 
their ability to bargain for better pay and working conditions. 
We urge the full House of Representatives to reject this 
legislation.

                                   Robert C. ``Bobby'' Scott, Ranking 
                                       Member.
                                   Hakeem S. Jeffries.
                                   Alma S. Adams.
                                   Mark DeSaulnier.
                                   Joe Courtney.
                                   Katherine M. Clark.
                                   Mark Pocan.
                                   Gregorio Kilili Camacho Sablan.
                                   Ruben Hinojosa.

                                  [all]