Little River Band of Ottawa Indians Tribal Government

LITTLE RIVER BAND OF OTTAWA INDIANS TRIBAL GOVERNMENT 641 359 NLRB No. 84 Little River Band of Ottawa Indians Tribal Govern- ment and Local 406, International Brotherhood of Teamsters. Case 07–CA–051156 March 18, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK At issue in this case is whether the Respondent, Little River Band of Ottawa Indians Tribal Government (the Respondent or the Band), is subject to the Board’s juris- diction and, if so, whether it violated Section 8(a)(1) of the Act by maintaining and publishing certain provisions of its Fair Employment Practices (FEP) Code and related regulations which, by their express terms, apply to em- ployees of the Little River Casino Resort (the Resort) and govern the rights of those employees to organize and bargain collectively.1 We answer both questions in the affirmative. As discussed below, this is not a case of first impres- sion. Rather, in almost every respect, it is very much like San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), affd. 475 F.3d 1306 (D.C. Cir. 2007), rehearing en banc denied (2007), which we find dispositive of the jurisdictional issue before us. On the merits, the Re- spondent concedes that, if the Board has jurisdiction over the Resort, its conduct violated the Act as alleged in the complaint. FINDINGS OF FACT I. JURISDICTION The Respondent, a federally recognized Indian Tribe, with an office and facilities in Manistee, Michigan, is engaged in the operation of a casino and resort. During 2010, the Respondent, in conducting its business opera- tions, derived gross revenues in excess of $20 million, and purchased and received at its Manistee facilities sup- plies and services valued in excess of $50,000 directly 1 Upon a charge filed on March 28, 2008, by Local 406, Internation- al Brotherhood of Teamsters, the Acting General Counsel of the Na- tional Labor Relations Board issued an 8(a)(1) complaint on December 10, 2010, against the Respondent. The Respondent filed a timely an- swer admitting in part and denying in part the allegations of the com- plaint and asserting as an affirmative defense that the Board lacks juris- diction in this matter. On August 3, 2011, the Respondent, the Union, and the Acting Gen- eral Counsel filed with the Board a stipulation of facts. The parties agreed that the charge, the complaint, the answer, the stipulation, and the exhibits attached to the stipulation shall constitute the entire record in this proceeding and they waived a hearing before and decision by an administrative law judge. On December 20, 2011, the Board approved the stipulation and transferred the proceeding to the Board for issuance of a decision and order. The Acting General Counsel and the Respond- ent filed briefs. from points outside the State of Michigan for use in con- nection with the casino and resort. For the reasons discussed below, we find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties stipulated, and we find, that the Union, Local 406, International Brotherhood of Teamsters, is a labor organ- ization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Little River Band of Ottawa Indians Tribe has ap- proximately 4000 enrolled members. The Tribe has the use of over 1200 acres of land in and near Manistee and Mason Counties, Michigan (tribal lands). Three hundred and eighty members live in or near tribal lands. The Tribe has a constitution and three branches of government: (1) an executive branch known as the office of the Tribal Ogema; (2) a legislative branch known as the Tribal Council; and (3) a judicial branch known as the Tribal Court. The Tribe has no significant base within its jurisdiction upon which to levy taxes. In order to raise revenue, the Tribal Council established the Resort under the authority of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701, et seq. The Resort is owned and controlled by the Respondent and is located on tribal land. Its facilities include 1500 slot machines, gaming tables, a high limits gaming area, bingo facilities, a 292-room hotel, a 95- space RV park, 3 restaurants, a lounge, and a 1700-seat event center. The Resort has 905 employees, including 107 tribal members and 27 members of other Native American tribes. The majority of Resort employees (771) are nei- ther enrolled members of the Band nor Native Ameri- cans.2 The majority of the Resort’s customers are also non-Indians who come from Michigan outside of tribal lands, other States, and Canada. The Resort competes with other Indian and non-Indian casinos in Michigan, other States, and Canada. The gross revenues of the Resort exceed $20 million annually. Pursuant to the IGRA, net revenues generated by the Resort may be used only for governmental ser- vices, the general welfare of the Tribe and its members, tribal economic development, or to support local gov- ernmental or charitable organizations.3 The Resort pro- 2 The Tribal government employs 1150 employees overall (including 905 at the Resort). Qualified enrolled members of the Tribe are given preference over non-Indians for employment positions within govern- mental departments and subordinate organizations, including the Re- sort. 3 25 U.S.C. § 2710(b)(2)(B). 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vides over half of the Tribe’s total budget, and substan- tially funds the Tribe’s Department of Natural Resources, Department of Public Safety, mental health and sub- stance abuse services, Department of Family Services, Housing Department, Tribal prosecutor’s office, and Tribal Court. The Tribal Council has delegated authority to a Gam- ing Enterprise Board of Directors to manage the Resort. However, the Tribal Ogema and the Tribal Council maintain strict oversight of Resort operations. Through the Tribal Council, the Respondent enacted the FEP Code and regulations to govern a variety of em- ployment and labor matters. The FEP Code by its ex- press terms applies to the Resort, Resort employees, and the unions that seek to represent those employees. Arti- cles XVI and XVII of the FEP Code govern labor organ- izations and collective bargaining. The parties have stip- ulated that Article XVI, among other things, grants to the Respondent the authority to determine the terms and conditions under which collective bargaining may or may not occur; prohibits strikes by the Respondent’s employees and labor organizations; requires labor organ- izations doing business within the jurisdiction of the Band to apply for and obtain a license; and excepts from the duty to bargain in good faith any matter that would conflict with the laws of the Band, the duration of a col- lective-bargaining agreement (which must be 3 years), drug and alcohol testing, and decisions to hire, layoff, recall, or reorganize the work duties of employees. B. Contentions of the Parties The Respondent contends that the Board lacks jurisdic- tion in this matter. The Respondent contends that, as a federally-recognized Indian tribe, it exercises inherent sovereign authority over labor relations within its reser- vation pursuant to established principles of Federal Indi- an law. The Respondent further contends that applica- tion of the Act would impermissibly interfere with its tribal sovereignty and internal self-governance. The Re- spondent’s defense rests entirely on its jurisdictional challenge. The Acting General Counsel contends that the Board’s exercise of jurisdiction over the Respondent is appropri- ate under the principles set forth in San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), affd. 475 F.3d 1306 (D.C. Cir. 2007), rehearing en banc denied (2007), in which the Board asserted jurisdiction over a casino that was owned and controlled by an Indian tribe and located entirely on reservation land. The Acting General Counsel asserts that the activity at issue, the operation of a casino that employs significant numbers of non-Indians and caters to a non-Indian clientele, is commercial in nature—not governmental. In these circumstances, the Acting General Counsel contends that the Board’s asser- tion of jurisdiction over the Respondent and the applica- tion of the Act to the Resort will not impinge upon the Respondent’s traditional sovereign authority and right to self-govern. On the merits, the Acting General Counsel contends that the challenged provisions of the FEP Code and relat- ed regulations explicitly interfere with the Section 7 rights of Resort employees by, among other things, pro- hibiting lawful strikes and other protected concerted ac- tivities, subjecting employees and unions to severe penal- ties for engaging in such activities, requiring unions seeking to organize Resort employees to obtain licenses, narrowly circumscribing the Respondent’s duty to bar- gain with recognized unions, and otherwise preempting, restricting, and limiting the rights and remedies provided in the Act. The Respondent does not argue that the chal- lenged provisions of the FEP Code are lawful if the Board has jurisdiction and the Act applies. III. ANALYSIS The parties have stipulated that the issues to be decid- ed are (1) whether the Board has jurisdiction over the Respondent and, if so (2) whether the Respondent has violated Section 8(a)(1) of the Act by applying certain provisions of the FEP Code and related regulations which, by their express terms, apply to Resort employees and labor organizations that may represent them. We conclude that the Board has jurisdiction and that the Re- spondent has violated the Act as alleged. A. Jurisdiction 1. The jurisdictional defense raised by the Respondent presents the same issue that was decided in San Manuel, supra. In San Manuel, the Board held that the jurisdic- tion of the Act generally extends to Indian tribes and tribal enterprises.4 In determining whether Federal Indi- an policy nevertheless requires the Board to decline ju- risdiction in a specific case, the Board adopted the Tus- carora doctrine, which establishes that Federal statutes of general application apply to Indians absent an explicit exclusion. See Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). The Federal courts have recognized several exceptions to the Tusca- rora doctrine to limit jurisdiction over Indian tribes. The exceptions were enumerated by the Ninth Circuit in Do- novan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 4 In so holding, the Board overruled prior Board decisions to the ex- tent they held that Indian tribes and their enterprises were implicitly exempt as governmental entitles within the meaning of Sec. 2(2) of the Act. See, e.g., Fort Apache Timber Co., 226 NLRB 503 (1976), and Southern Indian Health Council, 290 NLRB 436 (1988). LITTLE RIVER BAND OF OTTAWA INDIANS TRIBAL GOVERNMENT 643 1116 (9th Cir. 1985), where the court held that general statutes do not apply to Indian tribes if: (1) the law “touches exclusive rights of self-government in purely intramural matters”; (2) application of the law would abrogate treaty rights; or (3) there is “proof” in the statu- tory language or legislative history that Congress did not intend the law to apply to Indian tribes. “In any of these three situations, Congress must expressly apply a statute to Indians before . . . it reaches them.” Id. (emphasis in original). In San Manuel, the Board stated that it would apply the three exceptions articulated in Coeur d’Alene in as- sessing whether Federal Indian law and policy precludes the Board’s assertion of jurisdiction over Indian tribes and their commercial enterprises. The Board also adopt- ed a discretionary jurisdictional standard. The Board explained that the discretionary jurisdictional standard is intended to balance the Board’s interest in effectuating the policies of the Act with the need to accommodate the unique status of Indians in our society and legal culture. Thus, “when the Indian tribes are acting with regard to this particularized sphere of traditional tribal or govern- mental functions, the Board should take cognizance of its lessened interest in regulation and the tribe’s increased interest in its autonomy” and decline to assert its discre- tionary jurisdiction. 341 NLRB at 1063. Conversely, the Board observed that “[w]hen Indian tribes participate in the national economy in commercial enterprises, when they employ substantial numbers of non-Indians, and when their businesses cater to non-Indian clients and customers, the tribes affect interstate commerce in a sig- nificant way” such that the Board should assert jurisdic- tion. Id. at 1062. 2. We apply the Board’s holding in San Manuel and find it to be dispositive in the present case. Consistent with San Manuel, the first step in our analysis is to assess whether the Board’s assertion of jurisdiction is fore- closed under one of the three exceptions identified in Coeur d’Alene. As to the first exception, we find that application of the NLRA to the Resort would not inter- fere with the Respondent’s “exclusive rights of self- government in purely intramural matters,” San Manuel, 341 NLRB at 1059 (quoting Coeur d’Alene, 751 F.2d at 1116), such as “tribal membership, inheritance rules, and domestic relations.” Id. at 1061 fn. 19 (quoting Coeur d’Alene, 751 F.2d at 1116). Like the casino at issue in San Manuel, the Resort is a typical commercial enter- prise operating in, and substantially affecting, interstate commerce, and the majority of the Resort’s employees and patrons are non-Indians. See San Manuel, 341 NLRB at 1061 (“[T]he operation of a casino—which employs significant numbers of non-Indians and that caters to a non-Indian clientele—can hardly be described as ‘vital’ to the tribes’ ability to govern themselves or as an ‘essential attribute’ of their sovereignty.”)5 The second and third Coeur d’Alene exceptions are al- so inapplicable. The Respondent does not allege the ex- istence of any treaties covering the tribe. Application of the NLRA would therefore not abrogate treaty rights. Further, as the Board found in San Manuel, nothing in the statutory language or legislative history of the Act suggests that Congress intended to foreclose the Board from asserting jurisdiction over Indian tribes.6 San Ma- nuel, supra, 341 NLRB at 1058–1059. The Respondent urges that the Tuscarora-Coeur d’Alene line of cases is inapposite here, where the validi- ty of tribal law is questioned. The Respondent relies on NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002), in which the Tenth Circuit upheld a tribal “right- to-work” law, rejecting the Board’s contention that Sec- tion 14(b) of the Act implicitly allows only States and territories, not Indian tribes, to enact such legislation.7 Accordingly, the Respondent reasons, the Acting General Counsel’s challenge to the FEP Code and regulations must be dismissed. We find this argument unpersuasive. The court’s rea- soning in Pueblo of San Juan was limited to the unique facts and issues in that case. The court explicitly noted that—unlike in this case—“the general applicability of federal labor law is not at issue. . . . Furthermore, the 5 Contrary to the Respondent’s argument on brief, the fact that the tribe derives revenue from the Resort which it uses to address the tribe’s intramural needs does not render the operation of the Resort a traditional governmental function or an exercise in self-governance in purely intramural matters. As the Board noted in San Manuel, under this definition of intramural, the first Coeur d’Alene exception would swallow the Tuscarora rule. 341 NLRB at 1063. 6 Although the Respondent argues that Indian tribes have sovereign immunity against actions by private parties to enforce contractual rights under Sec. 301 of the LMRA, evincing a Congressional intent to ex- empt tribes and their enterprises from the Act, it cites no authority for that proposition. In any event, we find it unnecessary to decide the issue. Indian tribes have no sovereign immunity against the United States. See id. at 1061, citing Florida Paraplegic Assn. V. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1135 (11th Cir. 1999) (im- munity doctrines do not apply to the Federal Government); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 182 (2d Cir. 1996) (“tribal sovereignty does not extend to prevent the federal government from exercising its superior sovereign power”). Thus, even assuming that the Respondent can raise a sovereign immunity claim against a private party in a Sec. 301 suit, this would not affect the Board’s authority to effectuate the public policies of the Act. 7 Although Sec. 8(a)(3) permits employers and unions to enter into contractual union-security arrangements requiring union membership as a condition of employment, Sec. 14(b) allows States and territories to enact laws, commonly called “right-to-work” laws, prohibiting such arrangements. 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pueblo does not challenge the supremacy of federal labor law. The ordinance . . . does not attempt to nullify the NLRA or any other provision of federal law.” Id. at 1191. Rather, the question was only “whether the Pueblo continues to exercise the same authority to enact right-to- work laws as do states and territories[.]” Id. The court answered in the affirmative. It reasoned that although Section 8(a)(3) of the Act otherwise permits union- security arrangements, the exception for State and territo- rial “right-to-work” laws in Section 14(b) clearly indi- cates that Congress did not intend that Federal law in this regard should be paramount. Id. at 1200. (Indeed, the court found that, because of the 14(b) exception, 8(a)(3) is not a “generally applicable” statute insofar as it per- mits union security, and therefore that Tuscarora did not apply. Id. at 1199.) In those circumstances, the court was unwilling to find that Congress implicitly intended to divest the tribe of its sovereign authority to enact the “right-to-work” ordinance. Because the court’s reason- ing in Pueblo of San Juan addressed only the narrow issue presented in that case, it is inapposite here.8 In any event, we find no merit in the Respondent’s central contention—that Federal scrutiny of its FEP Code improperly impairs the exercise of the Tribe’s sovereign right of self government. As stated above, the provisions of the Code at issue here are not directed toward tribal intramural matters over which the Respondent retains exclusive rights of self government, such as tribal mem- bership, inheritance rules, or domestic relations. Nor are they addressed exclusively to employment relationships between the Tribe and its governmental employees, such as employees of the Tribal Court system or Tribal police personnel. Cf. Reich v. Great Lakes Indian Fish & Wild- life Comm’n, 4 F.3d 490, 495 (7th Cir. 1993) (exempting law enforcement employees of Indian agencies from the Fair Labor Standards Act). They are, instead, as we dis- cuss below, a set of rules purporting to limit or deny the rights given under Federal law to (mostly non-Indian) employees of a tribal commercial enterprise operating in interstate commerce. Because Tuscarora requires Indian tribes to submit to Federal regulation of such enterprises (with the exceptions already discussed), it would make little sense to hold that a tribe could avoid that responsi- bility merely by enacting statutes or ordinances that were inconsistent with Federal law.9 8 Consistent with its nonacquiescence policy, the Board respectfully continues to disagree with the court of appeals decision in Pueblo of San Juan. See, e.g., Arvin Industries, 285 NLRB 753, 756–757 (1987). For purposes of this case, however, it is sufficient that the court’s deci- sion is inapposite to the issues presented here. 9 The Tribe is, of course, free to enact employment regulations that do not conflict with Federal law. See Reich v. Mashantucket Sand & Gravel, supra, 95 F.3d at 181. Finally, we find that policy considerations weigh in fa- vor of the Board asserting its discretionary jurisdiction. See San Manuel, supra, 341 NLRB at 1063. The Re- spondent provides no basis to distinguish the policy con- siderations at issue in San Manuel. B. The Unfair Labor Practice Issues As stated previously, the Respondent concedes that, if it is found to be subject to the Act, the provisions of the tribal FEP Code at issue are unlawful as alleged, because they either explicitly restrict Section 7 activity or em- ployees would reasonably construe them to restrict such activity.10 Because we have found that the Respondent is The Tenth Circuit has held that Indian tribes are exempt from certain other Federal workplace statutes. Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (1982) (OSHA); EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989) (ADEA). In those cases, however, the court relied extensively on statements in Supreme Court decisions to the effect that ambiguities in statutes and treaties should be resolved in favor of tribal self-government. E.g., “All doubtful expressions con- tained in Indian treaties should be resolved in the Indians’ favor.” Do- novan, supra, 692 F.2d at 712, citing Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970); “[I]f there [is] ambiguity . . . the doubt would benefit the tribe, for ‘ambiguities in federal law have been construed generous- ly in order to comport with . . . traditional notions of sovereignty and with the federal policy of encouraging tribal independence.’” Cherokee Nation, supra, 871 F.2d at 939, quoting Merrion v. Jicarilla Apache Trube, 455 U.S. 130, 152 (1982). With all due respect, we think that those decisions are not conclusive authority for the results reached by the Tenth Circuit. In the first place, many of the cited decisions ad- dressed conflicts between tribal sovereignty and State law. Unlike the United States, however, States are not superior sovereigns to Indian tribes. Thus, it is not surprising that the Supreme Court was reluctant to conclude that tribal sovereignty (itself encouraged by established Federal policy) should be trumped by State law or policy. That similar considerations should apply to conflicts between tribal sovereignty and Federal law seems to us a less than self-evident proposition. And in the few decisions that even arguably addressed conflicts between gen- eral Federal law and the rights of Indian tribes, the Court upheld the former. See U.S. v. Dion, 476 U.S. 734 (1986) (although Indians pos- sessed general treaty rights to hunt and fish, Federal statutes divested them of the right to kill eagles); Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978) (tribal courts lack criminal jurisdiction over non-Indians); U.S. v. Wheeler, 435 U.S. 393 (1978) (no double jeopardy for U.S. to prosecute defendant under Federal law after tribal court ruled under tribal law); cf. U.S. v. Mazurie, 419 U.S. 544 (1975) (U.S. had authority to regulate introduction of alcohol into Indian country, and validly delegated that authority to tribal council). 10 Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Thus: Secs. 16.02, 16.03, 16.06(b) and (c), 16.15(b)(5), and 16.24(a) of the FEP Code prohibit strikes and other protected concerted activities. Secs. 16.06(a) and 16.15(b)(1), which prohibit activity that has the effect of “interfer[ing] with, threaten[ing] or undermin[ing] the Gov- ernmental Operations of the Band,” would reasonably be interpreted as prohibiting protected concerted activity, such as striking or engaging in communications critical of the Respondent or its agents. Secs. 16.08(a) and 16.24(c) and related regulations require labor un- ions to obtain a license before seeking to organize employees working for the Respondent, including employees of the Resort, and create an enforcement system, which includes reporting requirements and penal- ties. In order to obtain a license, a union seeking to represent casino LITTLE RIVER BAND OF OTTAWA INDIANS TRIBAL GOVERNMENT 645 subject to the Act, we find that the Respondent has vio- lated the Act, as alleged in the complaint. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has interfered with, restrained, and coerced employees of the Little River Casino Resort in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by pub- lishing and maintaining provisions of the FEP Code and related regulations that are expressly applicable to the Resort, the Resort employees, and labor organizations that may represent those employees, and: (a) Grant the Respondent exclusive authority to regu- late the terms and conditions under which collective bar- gaining may or may not occur, thereby preempting appli- cation of the Act and interfering with access to the Board’s processes. employees must agree to abide by the unlawful provisions of the FEP Code and to forgo rights and remedies guaranteed under the Act. Failure to obtain the license exposes the union to court injunctions and substantial civil fines. Several provisions of the FEP Code expressly exclude from the re- quired scope of good-faith bargaining mandatory bargaining subjects including “management decisions to hire, to layoff, to recall or to reor- ganize duties” (Sec. 16.12(a)(1)(B)); the duration of a collective- bargaining agreement (Sec. 16.18); drug and alcohol testing policies (Sec. 16.20(b)); and any other matter that would conflict with tribal law (Sec. 16.12(b)). Moreover, Sec. 16.01 states, contrary to Sec. 8(d) of the Act, that the Respondent has “inherent authority” to determine “the terms and conditions under which collective bargaining may or may not occur within its territory.” Secs. 16 and 17 establish that the tribal code is the primary authority in establishing and adjudicating the collective-bargaining rights of all employees of the Respondent. When read in conjunction, Secs. 16.01, 16.03, 16.06, 16.12(b), 16.24(d), and 17.1(c) convey the message that the laws of the Respondent and not the NLRA govern the collective- bargaining rights of Resort employees. By suggesting that labor dis- putes must be brought before the Tribal Court, from which there can be no appeal to the Board, these provisions interfere with the access of unions and employees to the Board. Sec. 16.16 contains a mandatory arbitration procedure for resolving unfair labor practice allegations, contrary to the settled principle that arbitration is a matter of consent, not compulsion. Under that provi- sion, the arbitrator’s decision is final and binding, except for limited review by the Tribal Court, in violation of employees’ right to have unfair labor practice charges decided by the Board. Sec. 16.17 contains an impasse resolution procedure, which in- cludes mandatory interest arbitration at the request of either party, again contrary to Federal law. Sec. 16.13(e) requires that an employee petition for an election to rescind a “fair share” union-security provision in a collective- bargaining agreement be filed within 90 days after execution of the agreement, contrary to Sec. 9(e) of the Act, which allows employees to file a deauthorization petition with the Board any time during the term of a collective-bargaining agreement. (b) Prohibit strikes and other protected concerted activ- ity and subject employees and labor organizations to fines, injunctions, and civil penalties for strike activity. (c) Require labor organizations to obtain a license to organize employees or conduct other business and sub- ject them to fines, penalties, and injunctions if they fail to obtain a license. (d) Place restrictions on the duty to bargain over man- datory subjects, including “management decisions to hire, to layoff, to recall or to reorganize duties”; the dura- tion of a collective-bargaining agreement; drug and alco- hol testing policies; and any subjects in conflict with tribal laws. (e) Limit or restrict access to the Board’s processes by requiring labor organizations to notify the Respondent of any alleged unfair labor practices and attempt to resolve such disputes through grievance and arbitration, and pre- cluding review of arbitration decisions and awards by the Board or courts; permitting contractual interest arbitra- tion, but precluding review of any allegedly unlawful award by the Board or the courts; providing that deci- sions by the Tribal Court over disputes involving the duty to bargain in good faith or alleged conflicts between a collective-bargaining agreement and tribal laws shall be final and not subject to appeal; and discouraging labor organizations and employees from invoking procedures or remedies outside of the Fair Employment Practices Code. (f) Limit the period of time that employees may file a deauthorization petition to the first 3 months of a collec- tive-bargaining agreement, thereby interfering with em- ployees’ right under Section 9(e) of the Act to file such a petition during the entire term of a collective-bargaining agreement. 4. The unfair labor practices set out in paragraph 3 af- fect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has maintained in its Fair Em- ployment Practices (FEP) Code and regulations certain provisions that violate Section 8(a)(1) of the Act, we shall order the Respondent to refrain from applying the unlawful provisions of its FEP Code and regulations to the Little River Casino Resort (the Resort), employees of the Resort, or any labor organization that may represent those employees. We shall also require the Respondent to notify all current and future employees of the Resort that the unlawful provisions of the FEP Code and regula- 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions do not apply to the Resort, its employees, or any labor organization that may represent those employees. We shall leave the manner in which the Respondent complies with these notice requirements to the Respond- ent’s reasonable discretion, subject to approval in com- pliance proceedings. The Respondent may, if it chooses, effect the required notice to employees by leaving the attached notice marked “Appendix” posted in conspicu- ous places, including all places where notices to Resort employees are customarily posted, and, if applicable, in electronic form, after the required 60-day posting period has expired. Alternatively, the Respondent may obviate the need for such continuing notice by taking such legis- lative and regulatory action as is necessary to rescind the application of the unlawful provisions of the FEP Code and regulations to the Resort. ORDER The National Labor Relations Board orders that the Respondent, Little River Band of Ottawa Indians Tribal Government, Manistee, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Applying to the Little River Casino Resort, em- ployees of the Resort, or any labor organization that may represent those employees, provisions of its Fair Em- ployment Practices Code and regulations that: (i) grant the Respondent exclusive authority to regulate the terms and conditions under which collective bargaining may or may not occur; (ii) prohibit employees from engaging in strikes or other protected concerted activity and subject employees and labor organizations to fines, injunctions, and civil penalties for striking; (iii) require labor organi- zations seeking to represent employees of the Resort to obtain a license and subject labor organizations to fines, injunctions, and civil penalties for failing to obtain a li- cense; (iv) place restrictions on the Respondent’s duty to bargain over mandatory subjects; (v) interfere with, re- strict, or discourage employees from filing charges with the National Labor Relations Board; (vi) discourage la- bor organizations and employees from invoking proce- dures or remedies outside of the Fair Employment Prac- tices Code; or (vii) limit the period of time during which employees may file a deauthorization petition. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify all current and future employees of the Re- sort that it will not apply to the Resort, the employees of the Resort, or any labor organization that may represent those employees, provisions of its Fair Employment Practices Code and regulations that: (i) grant the Re- spondent exclusive authority to regulate the terms and conditions under which collective bargaining may or may not occur; (ii) prohibit employees from engaging in strikes or other protected concerted activity and subject employees and labor organizations to fines, injunctions, and civil penalties for striking; (iii) require labor organi- zations seeking to represent employees of the Resort to obtain a license and subject labor organizations to fines, injunctions, and civil penalties for failing to obtain a li- cense; (iv) place restrictions on the Respondent’s duty to bargain over mandatory subjects; (v) interfere with, re- strict, or discourage employees from filing charges with the National Labor Relations Board; (vi) discourage la- bor organizations and employees from invoking proce- dures or remedies outside of the Fair Employment Prac- tices Code; or (vii) limit the period of time during which employees may file a deauthorization petition. Alterna- tively, the Respondent may rescind the application of the unlawful provisions of the Fair Employment Practices Code and regulations to the Resort. (b) Within 14 days after service by the Region, post at its Manistee, Michigan facility, copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees of the Little River Casino Resort are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 28, 2008. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted and Mailed by Order of the National Labor Relations Board” shall read “Posted and Mailed Pursuant to a Judgment of the United States Court of Appeals Enforc- ing an Order of the National Labor Relations Board.” LITTLE RIVER BAND OF OTTAWA INDIANS TRIBAL GOVERNMENT 647 testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT apply to the Little River Casino Resort, employees of the Resort, or any labor organization that may represent those employees, provisions of our Fair Employment Practices Code and regulations that: (i) grant us the exclusive authority to regulate the terms and conditions under which collective bargaining may or may not occur; (ii) prohibit employees and labor organi- zations from engaging in strikes or other protected con- certed activity and subject employees and labor organiza- tions to fines, injunctions, and civil penalties for striking; (iii) require labor organizations seeking to represent em- ployees of the Resort to obtain a license and subject them to fines, injunctions, and civil penalties for failing to ob- tain a license; (iv) place restrictions on our duty to bar- gain in good faith over terms and conditions of employ- ment; (v) interfere with, restrict, or discourage employees from filing charges with the National Labor Relations Board; (vi) discourage labor organizations and employ- ees from invoking procedures or remedies outside of the Fair Employment Practices Code; or (vii) limit the period of time during which employees may file a deauthori- zation petition. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL notify all current and future employees of the Little River Casino Resort that the unlawful provisions of our Fair Employment Practices Code and regulations set forth above do not apply to them or any labor organiza- tion that seeks to represent them or WE WILL rescind the application of the unlawful provisions of the Fair Em- ployment Practices Code and regulations to the Little River Casino Resort. LITTLE RIVER BAND OF OTTAWA INDIANS TRIBAL GOVERNMENT