Tribal casino workers may be closer to unionizing

“We believe they erred on the facts in question and the law.” Cody Martinez, chairman of the Sycuan Band

A federal appeals court took a step Friday toward allowing labor unions to represent thousands of workers at tribal gambling casinos in California.

In a case from San Diego County, the Ninth U.S. Circuit Court of Appeals did not rule on the central argument by the Sycuan Band of the Kumayaay Nation — that a contract it had signed with a union, under compulsion of federal and state law, on the rights of casino employees conflicted with uniform nationwide rules under the National Labor Relations Act. Instead, the court agreed with the union, Unite Here Local 30, that the issue, and other disputes in the contract, must be decided by an arbitrator.

The union, which has 300,000 members, has expressed confidence that an arbitrator would uphold the terms of the contract and clear the way for a vote on its representation of workers at the Sycuan Resort & Casino on tribal reservation land in El Cajon. Unite Here announced its intention to represent Sycuan workers in 2019.

Federal law requires Indian tribes to sign a compact with the state, with approval by the U.S. Interior Department secretary, to allow games such as slot machines, blackjack and roulette at tribal casinos. Like all such compacts, the 2015 California agreement required the Sycuan tribe to adopt a Tribal Labor Relations Ordinance, or TLRO, that allowed unions to seek to organize their employees — with specified exemptions, such as dealers, security workers and cash counters — and referred disputes to arbitration.

The tribe, however, refused to comply with the TLRO and said it was pre-empted by longstanding federal labor law. Unite Here said the Sycuan tribe had refused to provide employees’ names to the union or let a union representative enter the casino, and instead met with its employees and told them it opposes union representation.

The tribe also refused to submit to arbitration

and said it was not bound by the terms of the 2015 contract. State Attorney General Rob Bonta’s office disagreed and filed arguments supporting the union, telling the court that the Sycuan Band had promised California it would comply with the TLRO.

The appeals court endorsed the state’s view Friday and upheld a federal judge’s 2020 ruling in the union’s favor.

Although the tribe has rights as a sovereign government, “there is no sovereign immunity to arbitration because a party is only obligated to arbitrate when that party agreed to arbitrate, as Sycuan did” when it signed the TLRO, Judge Milan Smith said in the 3-0 ruling. He said all disputed issues, including the tribe’s claim that the agreement conflicts with federal labor law, must be referred to arbitration.

Kristin Martin, a lawyer for the union, said the ruling was “a very important step toward organizing.” She said the compact between the tribe and the state, and the resulting Tribal Labor Relations Ordinance, were “a creation of federal law” and did not conflict with it.

“The tribe can present arguments about why it believes the TLRO is pre-empted,” Martin said. “We’re confident the arbitrator will reject those arguments.”

Cody Martinez, chairman of the Sycuan Band, said the tribe would ask the full appeals court for a new hearing before a larger panel.

“We believe they erred on the facts in question and the law,” Martinez said in a statement. “Sycuan respects the independence of the judiciary and looks forward to the ultimate conclusion of this case.”

A lawyer for the union was not immediately available for comment.