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Unions Hit the Jackpot in Indian Casinos

06 Feb

By: Ricardo Torres

"Inside Edge" Newsletter

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A Peek Inside Labor Strategy and Organizing History

Due to unions’ long-term planning, even companies that think they are in “safe” industries can never quite tell if they will eventually become targets of organizing campaigns. A perfect example is provide by Indian gaming: after prolonged union pressure, even sovereign Indian nations are now subject to the NRLA and union organizing.

Ricardo Torres – President & CEO

Las Vegas casinos have for many years been a great source for unions to collect dues. Not just casinos, but also off-the-strip hotels,restaurants, housekeeping services, construction and much more; however, the much bigger prize that has the unions energized are Indian casinos.

The Federal government lost much of their control over gambling on Indian reservations and land with the Indian Gambling Regulation Act of 1988 and the revenues exploded from around $100 Million to $27.9 billion in 2012 (page 2, paragraph 5),
which is more than Las Vegas and Atlantic City combined.

The battles between the Federal and State Governments and the Tribal Indian Nations have been long and full of litigation concerning Indian sovereignty and gaming laws. The first attempt to open a gambling casino/card room was in 1970 by the Rincon Band of Luiseno Indians in San Diego County. Although this attempt ultimately failed, it set in motion a nationwide whirlwind of challenges pushing the Indian Nations’ rights to self-determination. The first successful high stakes bingo parlor built was in Florida by the Seminole tribe in 1979. By 2000, there were more than 150 tribes in 24 states that had opened casinos or bingo operations on their reservations. There are currently over 400 gaming operations conducted by 234 tribes in 28 states which directly and indirectly provide 679,000 jobs nationwide.

In order to position themselves to organize this new revenue source in the 1980’s, the AFL/CIO lobbied in both Washington D.C and state legislatures to bring some direction and order to the Indian gaming industry. Individual states worked hard to impose state laws and taxation on reservation gaming, but many tribes tied up these laws in litigation for years. In 1987, the U.S. Supreme Court recognized Indian Gaming, but under state government restrictions, and, in 1988, Congress passed the Indian Gaming Regulatory Act (IGRA) to further establish the rules for the operation and regulation of Indian Gaming.

When I was a National Organizing Director, we were in contact with many Indian Casino workers across the country. Despite the horribleworking conditions, it was impossible to organize them, as tribal leaders and gaming institutions were not required to recognize the NLRB rules concerning workers’ rights to form unions and the tribal leaders were not going to weaken their tribal sovereignty for unions.

California was quickly becoming a perfect proving ground to change the trajectory of the AFL/CIO’s struggle to organize this growing industry. By the late 1990’s, 41 gambling facilities operated within California’s 38 counties. A great deal of debate existed over the legality of most tribal gambling operations, since they were operating without a Tribal-State compact, as required by the Indian Gaming and Regulatory Act. We put enormous pressure on state politicians to use this as leverage to close the casinos until they gave concessions to union organizing rights. Consequently, former California Governor Pete Wilson requested that tribes cease their operations until compacts couldbe achieved. To support his request, the Governor argued that gaming operations violated the terms of the 1988 Indian Gaming and Regulatory Act (IGRA) requiring the negotiation of a Tribal-State compact. In response, the tribal governments argued that the Governor had refused tonegotiate in “good faith” as is required by IGRA.

Union lobbyists were working hard to compel the Governor to exert even more pressure on the tribes and force them to agree to compacts that the AFL/CIO endorsed. This caused bad blood between the state’s elected officials and tribal leaders, as the Governor threatened tribal leaders with confiscation of gaming machines by federal attorneys. Such an action would have devastated the tribes with the loss of tens of thousands of jobs. This was the catalyst for California’s 1998 Proposition 5, which would have forced the state to accept a boiler-plate compact that any tribe agreed to sign, and effectively exempted Indian casinos from restrictions against class III “Las Vegas style” gaming.

We sent in an army of union lobbyists to sabotage Proposition 5 and, after the Proposition passed, a group of unions filed a petition for a writ of mandate with the California Supreme Court, supported by Gov. Wilson. Due to this and another challenge, the State Supreme Court blocked Proposition 5 from going into force, and ultimately struck down nearly the entire proposition.

Looking for a win/win solution, we put pressure on newly elected Gov.Gray Davis to negotiate a Compact that would effectively re-implement Proposition 5’s approval of class III gaming, but allowed the state to set specific guidelines forcing the casinos to allow unionization. Between late July and September 1999, California tribes conducted independent negotiations with labor representatives and agreed on a model Tribal Labor Relations Ordinance (“TLRO”) that meets the requirements of Section 10.7 of the Compact. The TLRO provides organizational rights to workers at tribal gaming establishments and related facilities that employ 250 or more people (total; non-eligible employees, such as dealers, count towards the total).

In March 2000, California voters passed Proposition 1A, approving Indian gaming on reservation lands. The Tribal-State Compact received approval from the Bureau of Indian Affairs in May 2000 and became effective immediately. Even before the passage of Proposition 1A, unionswere already organizing and, on September 13, 1999, the Viejas Band of Kumeyaay Indians outside of San Diego signed a collective bargaining agreement with the Communications Workers of America.

We set on a fast path to organize casinos in California, blitzing thestate with a coalition of unions to overwhelm any tribe’s ability to counter our activity. In our favor was the fact that a majority of employees working at the casinos were non-Indians living off-reservation, and, in fact, the National Indian Gaming Association reports that 75% of all workers at tribal gaming establishments in the United States are non-Indians. Our strategy was simple: attack tribal leaders on all fronts; accuse them of being mobbed up; highlight the working conditions and disrespect for non-Indian employees; facilitate charges like sexual harassment and intimidation; and tie the casinos up in charges of violation of the Compact agreement. We used planted workers (Salts) to cause internal havoc and put the fairly inexperiencedand reactionary management teams to the test.

Across the country, unions have used the carrot and stick approach toorganizing Indian casinos. As the IGRA requires tribal leaders to negotiate compacts with state officials and many states are vehemently opposed to Indian gaming within their borders, it could make any approval a long and litigious process with no guarantees of final success. Strategizing on long term solutions to organizing Indian casinoworkers, we decided that, rather than have a drawn out battle state by state, we could use our political clout and resources in the states’ approval process for on/off reservation casinos and compact agreements. In exchange for our help supporting the opening of an Indian casino, especially off-reservation where our clout was most useful, we required neutrality agreements for organizing their workers. If no neutrality agreement could be made, the fight was on and the aim would be to use the union’s political clout to push denial of any casino project. For years it was trench warfare and the battle for these Indian casino workers got very ugly.

In 2007, the U.S. District Court (D.C. Circuit) upheld an earlier decision by the National Labor Relations Board (NLRB) that reversed 30 years of precedent and found that the National Labor Relations Act applied to on-reservation casino operations, and not just to off-reservation properties, as previously found. The decision or evolution as to what industries unions target are generally coordinated by the Labor Federations (AFL/CIO/Change to Win) by looking at industries 10 or more years in the future. When I was a Union official, we frequently put our long-term strategies in motion with the flexibility to adapt to changing circumstances on the ground and influence the outcome, so it is essential for businesses to enact long-term goals with consistent application to insulate themselves from union intrusions. As the example with Indian casinos demonstrates, when unions sink their teeth into a target, they are determined to get their pound of flesh.

One reason unions have spent so much time and money developing and executing organizing campaigns against high-profit industries like Indian Casinos is simple: just as the famous bank robber Willy Sutton said when he was asked why he robbed banks, he answered “because that’s where the money is”. However, unions also believe that the core principles of business are bad and the fight to take businesses over andmake them accommodating to their workforce is just.

As a National Organizing Director, my national win record (including Puerto Rico) was well over 90% in over one thousand campaigns. While I was at the George Meany labor college working on advanced organizing tactics, we had a directive to put together a blueprint for psychological warfare as it applies to organizing manipulation tactics. As Richard Trumka stated when the California Nurses Association and the SEIU union members and officers were fighting over hospital organizing territory: “Unfortunately, these issues have been submerged by an increasingly vicious turf war that is dividing and weakening the abilityof health workers to fight the real enemy – management.”

We viewed our organizing targets as our enemy and set out to defeat them by out-maneuvering them, knocking them off balance and never letting them know what our line of attack was. Once we determined that aguerrilla-style attack on a company was appropriate, the fight was on. Many companies, especially large companies, are large bureaucracies and are often perfect targets for this strategy. Combined with a relentless group of employees (tight-knit, dedicated, self-motivated, spread out and with the ability to challenge and attack the company and its policies at will), this strategy will surely frustrate and catch the management team off-guard and lacking an appropriate response. Many of the union’s attacks are made personal in order to add anger to the management’s response message and draw the targets further onto the union’s playing field.

This type of organizing attack is very hard to counter. If you find your company in this type of organizing campaign, then you must not respond in a conventional manner. Instead, reverse the union’s advance by neutralizing their advantages by being decisive and never responding in an unplanned manner. The best defense, though, is to know your employees, maintain your policies, and consistently apply and enforce your rules.

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