Labor Union Fight as Red Hawk Casino Looks To Stall Appeal

by Placerville Newswire / Aug 11, 2017 / comments

[Andrew Westney, Law 360]

Law360, New York (August 10, 2017, 8:25 PM EDT) -- The Shingle Springs Band of Miwok Indians urged a California federal judge on Wednesday not to put into effect his decision to compel arbitration in a battle between the tribe's casino and a union, saying the tribe is likely to win its appeal to the Ninth Circuit.

U.S. District Judge Troy L. Nunley ruled on July 12 that the tribe must go before an arbitrator to determine whether its suit against Unite Here International Union, as well as the union's suit against the tribe on claims that the tribe violated a memorandum of agreement when it fired two employees of the Red Hawk Casino for supporting the union, can be handled by an arbitrator.

The Shingle Springs tribe in a motion Wednesday asked to stay enforcement of that judgment, arguing that the "sole intent" of the agreement between the tribe and the union was that the tribe remain neutral on employees' selection of a union, and didn't provide for the tribe to go to arbitration over firing the employees.

An arbitration provision dealing with the discharge of employees is more typically found in a collective bargaining agreement, and it would actually constitute an unfair labor practice under the National Labor Relations Act because it would involve recognizing a union that doesn't represent the majority of employees, the tribe said.

"Because any agreement to [arbitrate] issues pertaining to the terms and conditions of employment would be illegal, the court must refrain from enforcing the arbitration clause under these circumstances," the tribe said.

The Shingle Springs Band filed suit against Unite Here in May 2016, arguing that the June 2012 memorandum of agreement is not a collective bargaining agreement and does not allow the union to arbitrate personnel decisions such as discipline or terminations before it has established majority status.

The union, which filed its own suit in February 2016, accused the tribe of violating the MOA and its provision on neutrality in regard to an employee's decision to join a union, according to its complaint.

Judge Nunley ruled in July that an arbitrator should judge the arbitrability of the dispute between the tribe and the union under the dispute resolution framework set out in the MOA.

The tribe appealed that ruling to the Ninth Circuit on Wednesday and asked the judge to stay his judgment pending the appeal, saying the tribe has a high likelihood of success in the appeal, or at least raises a substantial legal issue to be considered.

Because Unite Here doesn't yet represent a majority of the employees in the bargaining unit at the casino, it only has standing to enforce the tribe's neutrality on the selection of a union, not to try to enforce issues over employee firings that properly belong in a CBA, the tribe said.

Allowing Unite Here to enter into a CBA with the tribe would actually give the union an unfair advantage over other unions, thereby harming the public interest, the tribe said.

Representatives for the parties were not immediately available for comment Thursday.

The tribe is represented by Christopher F. Wohl and Alexandra M. Asterlin of Palmer Kazanjian Wohl Hodson LLP.

The union is represented by Kristin L. Martin of Davis Cowell & Bowe LLP.

The tribe's case against the union is Shingle Springs Band of Miwok Indians v. Unite Here International Union, case number 2:16-cv-01057, in the U.S. District Court for the Eastern District of California.

The union's case against the tribe is Unite Here International Union v. Shingle Springs Band of Miwok Indians, case number 2:16-cv-00384, also in the U.S. District Court for the Eastern District of California.

--Additional reporting by Joyce Hanson, Adam Lidgett and Christine Powell. Editing by Catherine Sum.