by Richard Hankins

Let me start with an apology for the recent lack of posting.  Our workload has boomed of late, and it's been difficult balancing the obligations of this blog with meeting the needs of our clients.  I've gotten several emails asking where we've gone.  We're here, and rest assured we will get the balance thing figured out. 

Of course, in addition to the blog, Workplace Horizons maintains watch lists that are automatically updated by Govtrack.us.  Our traffic data indicates that despite the recent lack of commentary from us, lots of readers have been using the watch lists to track the status of legislation.  That makes me feel a little better.

As some regular readers know, my partners and I have spent much of January and February assisting the Mashantucket Pequot Tribal Nation with regard to issues related to the National Labor Relations Board's assertion of jurisdiction over Foxwoods Resort Casino.  In my view, it is the most interesting thing going on in labor and employment law at the moment, but our involvement limits my ability to comment on it.   I will, however, point out a nice article about the issue that recently appeared in The Westerly Sun, in which  Mashantucket Pequot Tribal Court Chief Judge Thomas Weissmuller addresses, among other things,  the issue of union organizing rights under Tribal law

"If they had filed here," Weissmuller said of the collective bargaining unit, "it would have been a three to six month process."

That is because everything that comes into the door is on a six-month track to be finished, and a process has been set up to deal with labor cases at the tribal court.

As it stands now, the UAW attempt at Foxwoods is approaching its 10th month with still plenty of legal wrangling expected.

Any disagreements that would occur between the tribe and a bargaining unit would be heard by one of two labor law experts -- one from Pennsylvania and one from Washington -- who Weissmuller took on to serve as judges in those cases. What Weissmuller said he would want in labor cases is what he wants in all cases before the court -- speedy resolutions that keep things moving forward.

As it stands now, the tribal court does hear some labor disputes. Any worker at Foxwoods can bring a complaint to a board of review at the casino. That panel’s decisions can be appealed to the tribal court, which can and does reverse decisions made by the board of review.

Contrary to public statements by UAW officials that proceding under Tribal law would be like "letting the fox guarding the henhouse," Judge Weissmuller makes it clear in the interview that the Tribal court is truly an independent judicial body:

Contracts such as that entered into by the tribe and MGM for the MGM Grand at Foxwoods are made under tribal law, as are deals with companies who hope to open franchises at the casino property, Weissmuller said.

"Big businesses come in and look at who the judges are and where they come from," he said. "And they see that we are independent."

The author also notes:

What he does not receive, however, is demands for cases to be decided one way or the other.

"The tribal nation wins about half the time, and the non-tribal member wins about half the time," Weissmuller estimated.

Weissmuller, himself a former litigator who served as a tribal court judge on the Tulalip Tribe Reservation in Washington before coming back home to North Stonington to work in Mashantucket, is appointed by the tribal council to three year terms. He cannot be removed for one of his decisions during that term, he said.

It's interesting stuff that just doesn't come up when representing a corporate client.