[HISTORY: Adopted by the Tribal Council of the Nottawaseppi
Huron Band of the Potawatomi 6-25-2009 by Res. No. 06-25-09-02 (Title V, Ch.
3, of the Tribal Code). Amendments noted where applicable.]
This Labor Relations Code is adopted by the Tribal Council of
the Nottawaseppi Huron Band of the Potawatomi Indians acting in its
governmental capacity to regulate employment and labor relations within
its jurisdiction, including those between the tribal government and
its employees. This Labor Relations Code regulates all subordinate
subdivisions, instrumentalities, agencies, arms, and entities of the
Nottawaseppi Huron Band of Potawatomi Indians, including the FireKeepers
Development Authority, in their role as tribal employers engaged in
governmental operations of the Tribe. Notwithstanding external characterizations
of the governmental operations of the Tribe, these operations are
basic governmental functions of the Tribe exercised pursuant to its
inherent self-governing authority. The Tribe's commercial activities,
including through the FireKeepers Development Authority, are essential
to raise revenue to finance basic governmental functions. All revenue
raised through the Tribe's commercial activities are returned
to the Tribe to finance basic governmental functions, such as provision
of education, public safety, transportation, economic development,
health care, and social services. Bode'wadmi traditions and values
recognize that everyone and everything is connected and that the actions
of one, or that of a part, will impact the whole. In all things we
do, we strive to promote those Bode'wadmi traditions and values
by seeking consensus so that decisions are made that benefit the whole
of the community, which includes the community of employees who are
invited in, and accept employment within our tribal community. In
keeping with our values, this Labor Relations Code regulates labor
relations between the Tribe and its employees, including employees
in tribal commercial enterprises that raise revenue to finance basic
governmental functions and programs.
This Labor Relations Code is adopted pursuant to the inherent
authority of the Tribal Council of the Nottawaseppi Huron Band of
the Potawatomi Indians to regulate employment and labor relations
within its jurisdiction. The Nottawaseppi Huron Band of the Potawatomi
Indians' Tribal Council is responsible for promoting Bode'wadmi
traditions and values in the laws governing the actions of the Tribe
and in the Tribe's relations with its citizens and other persons
within the jurisdiction of the Tribe. The Nottawaseppi Huron Band
of the Potawatomi Indians has inherent authority to govern labor relations
within its jurisdiction, and this includes regulating the terms and
conditions under which collective bargaining may or may not occur
within its territory. The Tribe's inherent authority further
includes the right to promote the peace, safety, and general welfare
of the Tribe from being harmed or threatened by the activities of
nonmembers within the Tribe's jurisdiction.
The purpose of this chapter is to provide employees who choose
to obtain employment with a tribal employer, or within the jurisdiction
of the Tribe, the right to organize and bargain collectively with
their employers, and the freedom to choose not to participate in collective
bargaining efforts, in order to promote harmonious and cooperative
relationships between tribal employers and employees, in a manner
that protects essential attributes of tribal self-government and promotes
the peace, safety, and general welfare of the Tribe and persons who
participate in our tribal economy.
A.Â
Bode'wadmi traditions and values recognize the interconnectedness
of every person and everything in this world and that the actions
of one individual, or of a group of individuals, will have an impact
on the whole of our community. In all things we do as a government,
it is our obligation to promote the Bode'wadmi traditions and
values by seeking consensus so that decisions that are made will benefit
the whole of our community for this and the next Seven Generations,
which includes the community of employees who are invited in, and
accept employment within, our tribal community. In furtherance of
that goal, it is the policy of the Tribe to promote harmonious and
cooperative relationships between the tribal government and its employees
by permitting employees within the governmental operations of the
Tribe to organize and bargain collectively; to protect orderly governmental
operations of the Tribe to provide for the peace, safety, and general
welfare of the Tribe and its members; to prohibit and prevent all
strikes by employees within the governmental operations of the Tribe;
to protect the rights of employees within the jurisdiction of the
Tribe to join or refuse to join, and to participate in or refuse to
participate in, labor organizations; to protect the rights of tribal
members to employment preferences; and to ensure the integrity of
any labor organization doing business within the jurisdiction of the
Tribe by requiring any such labor organization to obtain a license.
B.Â
In carrying out the powers of self-government in a manner that promotes
and preserves our Bode'wadmi values and traditions, the Tribe
strives to be guided by the Seven Grandfather Teachings in its deliberations
and decisions. The rights and limitations contained in this chapter
are intended to reflect the values in the Seven Grandfather Teachings
to ensure that tribal employers, employees, labor organizations, and
other persons participating in the employer-employee relations within
the jurisdiction of the Tribe will be guided by the Seven Grandfather
Teachings (Noeg Meshomsenanek Kenomagewenen):
|
Bwakawen — Wisdom
| |
|
Debanawen — Love
| |
|
Kejitwawenindowen — Respect
| |
|
Wedasewen — Bravery
| |
|
Gwekwadzewen — Honesty
| |
|
Edbesendowen — Humility
| |
|
Debwewin — Truth
|
As used in this chapter, the following terms shall have the
meanings indicated:
A unit of employees within the governmental operations of the Tribe identified as an appropriate unit for representation pursuant to § 5.3-11.
An employee of a tribal employer who assists or acts in a
confidential capacity with respect to legal, financial, human resources,
accounting or policy matters, and includes such employees who have
access to information that is subject to use in contract negotiations,
the disposition of grievances, or other labor relations matters.
A labor organization that is lawfully elected to be the exclusive
bargaining representative of a bargaining unit within the governmental
operations of the Tribe.
The unincorporated instrumentality established by the Tribe
to run and operate the FireKeepers Casino and related operations.
The Nottawaseppi Huron Band of the Potawatomi Gaming Commission.
The operations of the Nottawaseppi Huron Band of the Potawatomi
Indians exercised pursuant to its inherent self-governing authority
as a federally recognized Indian tribe, whether through the FireKeepers
Development Authority or other subordinate economic organization or
instrumentality of the Tribe or through a department, commission,
agency, or authority of the Tribe, including, but not limited to:
A substance defined as unlawful by state and/or federal law
or a prescribed drug used outside of the prescribed manner, or an
over-the-counter drug used outside the prescribed manner.
Failure of a tribal employer and an exclusive representative,
after good-faith bargaining, to reach agreement in the course of negotiating
a collective bargaining agreement.
25 U.S.C. §§ 2701 through 2721.
Includes a labor association, labor union, an affiliate of
a labor association or labor union, and any other organization of
employees organized for the purpose of bargaining over hours of employment,
rates of pay, working conditions, grievances, or other terms or conditions
of employment.
The Constitution and Tribal Code of the Nottawaseppi Huron
Band of the Potawatomi Indians, resolutions of the Tribal Council
or subordinate entities, and the tribal regulations of the commissions,
agencies, departments, and authorities of the Nottawaseppi Huron Band
of the Potawatomi Indians.
Any action by a tribal employer which prevents its employees
from going to work for the purpose of pressuring or coercing tribal
employees and/or their bargaining representative to accept the tribal
employer's bargaining proposals.
Any individual holding supervisory and managerial positions
within a tribal employer having authority, in the interest of the
tribal employer, to hire, transfer, suspend, layoff, recall, promote,
discharge, assign, reward or discipline other employees, or responsibly
direct them, or adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of such
authority is not of a routine or clerical nature and who represents
a tribal employer's interests and who, because of their position,
does not qualify and is not eligible to be within a bargaining unit.
The Neutral Election Official appointed by the Tribal Council
for the purpose of:
Employees within a bargaining unit who are not members of
a labor organization.
A tribal employee's refusal, in concerted action with
other tribal employees, to report for duty or his or her willful absence
in whole or in part from the full, faithful, and proper performance
of the duties of employment for the purpose of inducing, influencing
or coercing a change in the conditions, compensation, rights, privileges
or obligations of tribal employment. This term includes:
Boycotts of any kind designed to adversely affect the tribal
employer; and
Notwithstanding the provisions of any other law, an employee
within the governmental operations of the Tribe who, by concerted
action with others and without the lawful approval of his or her supervisor,
willfully absents himself or herself from his or her position, or
abstains in whole or in part from the full, faithful and proper performance
of his or her duties for the purpose of inducing, influencing or coercing
a change in employment conditions, or the rights, privileges, or obligations
of employment.
An economic enterprise operating within the jurisdiction
of the Tribe, whether under a tribal or corporate charter, established
by resolution or code of the Tribal Council.
The Nottawaseppi Huron Band of the Potawatomi Indians Tribal
Council.
The Nottawaseppi Huron Band of the Potawatomi Indians Tribal
Court.
Any employee of a tribal employer except:
A subordinate subdivision, instrumentality, agency, arm,
or entity of the Nottawaseppi Huron Band of the Potawatomi Indians,
including FireKeepers Development Authority, or any economic organization,
department, commission, agency, or authority of the Tribe engaged
in any governmental operation of the Tribe.
The Nottawaseppi Huron Band of the Potawatomi Indians.
Dues, fees, assessments or other charges of any kind or amount
or their equivalents paid or payable, directly or indirectly, to a
labor organization or its agents and includes payments to any charity
or other third party in lieu of such payments to a labor organization.
Weekends, tribal, state and national holidays shall not be counted
in determining the deadline for any action that is required to occur
within ten (10) days or less under the provisions of this chapter.
The Neutral Election Official, mediators, fact finders, and arbitrators
shall have discretion to extend the deadlines herein for matters they
handle only for good cause shown by a party in advance of the deadline.
A.Â
In keeping with the Tribe's responsibility to protect its employees'
privilege to choose whether to organize and bargain collectively,
no person shall be required, in order to obtain employment or as a
condition of employment or continuation of employment with a tribal
employer, to do any of the following:
(1)Â
Resign or refrain from voluntary membership in, voluntary affiliation
with, or voluntary financial support of a labor organization;
(2)Â
Become or remain a member of a labor organization or be affiliated
with a labor organization;
(3)Â
Be recommended, approved, referred, or cleared by or through a labor
organization; or
(4)Â
Pay union dues as defined in this chapter, or to have union dues,
fees, assessments, or other charges to be held for, transferred to,
or paid over to a labor organization deducted from a tribal employee's
wages, earnings, or compensations unless the employee has first presented,
and the tribal employer has received, a signed written authorization
of such deductions, the authorization of which may be revoked by the
employee at any time by giving written notice of such revocation to
the tribal employer.
B.Â
It shall be unlawful for any person, labor organization, or officer,
agent or member thereof, or tribal employer, or officer or agent thereof,
by any threatened or actual intimidation of an employee or prospective
employee or his or her parents, spouse, children, grandchildren, or
any other persons residing in the employee's or prospective employee's
home, or by any damage or threatened damage to his or her property,
to compel or attempt to compel such employee or prospective employee
to join, affiliate with, or financially support a labor organization
or to refrain from doing so, or to otherwise forfeit his or her rights
as guaranteed by provisions of this chapter. It shall be unlawful
to cause or attempt to cause such employee to be denied employment
or discharged from employment because of support or nonsupport of
a labor organization by inducing or attempting to induce any other
person to refuse to work with such employee.
C.Â
Any agreement, understanding or practice, written or oral, implied
or expressed, between any labor organization and any tribal employer
which violates the rights of employees as guaranteed by the provisions
of this chapter is hereby declared to be against public policy, an
illegal combination or conspiracy in restraint of trade, null and
void and of no legal effect.
D.Â
Any claims alleging violation of the Freedom of Choice provision
must be filed in Tribal Court in accordance with this chapter and
other laws of the Tribe.
A.Â
Declaration and findings.
(1)Â
The governmental operations of the Tribe are critical to the public
health, safety, and welfare of the Tribe and its members. Interference
with employee relations threatens to interrupt the provision of the
governmental operations of the Tribe. This Labor Relations Code regulates
the relationship between the Tribe and its employees to ensure the
provision of governmental operations is not interrupted. As such,
no employee or labor organization shall interfere with, threaten or
undermine the governmental operations of the Tribe.
(2)Â
The operation of "Class II" and "Class III" gaming through the FireKeepers
Casino is a direct exercise of the governmental operations of the
Tribe to raise government revenue to finance basic governmental programs
and services of the Tribe. As such, interference with the operation
of the FireKeepers Casino gaming directly interferes with critical
governmental operations of the Tribe. No employee or labor organization
shall interfere with, threaten or undermine the operation of the FireKeepers
Casino by the Tribe.
B.Â
No right to strike. Employees within the governmental departments
and agencies of the operations of the Tribe, including the FireKeepers
Casino, have no right to strike.
C.Â
Strikes prohibited. Strikes, work stoppages, slowdowns, or protests,
as well as any other expressions of disputes, conflicts or displeasure
against the governmental operations of the Tribe, are contrary to
the health, safety and welfare of the Tribe and its members, and are
therefore prohibited. No employee or labor organization shall engage
in the types of conduct or behavior referenced above with respect
to any governmental operation of the Tribe. No labor organization
shall cause, instigate, encourage or support an employee or any other
individual to participate in the types of conduct or behavior referenced
above against a tribal employer.
Tribal employers, acting as subordinate subdivisions, instrumentalities,
agencies, arms or entities of the Tribe, may not act in a way that
will interfere with the governmental operations of the Tribe. Tribal
employers are responsible for promoting harmonious and cooperative
relationships between the tribal government and its employees; protecting
the orderly governmental operations of the tribe; and protecting the
rights of employees within the jurisdiction of the Tribe to join or
refuse to join, and to participate or refuse to participate in, labor
organizations; and protecting the peace, safety, and general welfare
of its employees. As such, a tribal employer shall not engage in any
action constituting a lock out.
A.Â
Licensing required. Each labor organization representing or seeking
to represent employees working for any tribal employer shall be required
to obtain a license issued by the Nottawaseppi Huron Band of the Potawatomi
Gaming Commission (the "Gaming Commission").
B.Â
Initial filing of license application.
(1)Â
Within thirty (30) days of the date on which it begins organizing
activities directed at the employees of any Tribal employer, a labor
organization shall file with the Gaming Commission an application
for licensing in accordance with regulations promulgated by the Gaming
Commission.
(2)Â
For purposes of this section, "organizing activities" shall include,
without limitation, soliciting membership by means of direct personal
contact, or any public notices such as the posting or distribution
of fliers, posters or advertisements; provided that nothing in this
section shall be construed as authorizing organizing activities which
are otherwise prohibited by regulations, policies or procedures adopted
by any tribal employer.
(3)Â
Any person who intentionally makes a false statement to the Gaming
Commission in connection with any application for a license or other
registration required by the Gaming Commission shall be deemed to
be in violation of this chapter.
C.Â
Condition of license.
(1)Â
Any license issued to any labor organization conducting business
within the Tribe's jurisdiction is a privilege, subject to the
consent and regulatory authority of the Tribe.
(2)Â
The consent of the Tribe to allow such labor organization to conduct
business within the jurisdiction of the Tribe is conditioned upon
such labor organization's agreement to be subject to the laws
of the Tribe and its regulatory authority, including this chapter.
(3)Â
In consideration of the Tribe's consent to such labor organization's
conduct of business within the jurisdiction of the Tribe, such labor
organization agrees to:
(4)Â
Any labor organization agrees that a license issued by the Tribe
for conducting business within the territorial jurisdiction of the
Tribe may be revoked by the Tribe at any time, with or without hearing,
for any failure to comply with the laws of the Tribe and such other
requirements as the Gaming Commission may require under its regulations.
D.Â
Subject to the requirements of this § 5.3-10, the Gaming Commission is hereby authorized by the Tribal Council of the Nottawaseppi Huron Band of the Potawatomi Indians to enact such regulations as it sees fit to investigate and license any labor organization seeking to conduct business within the jurisdiction of the Tribe.
A.Â
Petition for election. A labor organization may file a petition with
the Tribal Employment Rights Office (TERO) Director stating that 30%
or more of the tribal employees in an appropriate bargaining unit
desire to be exclusively represented for the purpose of collective
bargaining within the unit defined by the petitioning organization
and request the designation of said organization as their exclusive
representative.
(1)Â
A petition filed hereunder must contain either the signatures of
30% of the tribal employees in the bargaining unit proposed, or be
accompanied by the submission of authorization cards from at least
30% of the tribal employees in the proposed bargaining unit.
(2)Â
The petition must also describe the proposed bargaining unit by including
a designation of each job category or position which the labor organization
states should be included in the bargaining unit and each job category
or position the labor organization states should be excluded from
the proposed bargaining unit.
(3)Â
The petition must state the date it was initiated.
(4)Â
A petition to be considered valid must be completed within ninety
(90) days of the date it was initiated. Authorization cards to be
considered valid must be utilized within ninety (90) days of the date
it was signed.
B.Â
Receipt of petition for election. Upon receipt of such a petition
the TERO Director shall refer the petition to the Tribal Court. The
Tribal Court shall appoint a Neutral Election Official or Election
Official with substantial experience in labor relations and labor
law to act on the petition. The Neutral Election Official or Election
Official shall review the petition, verify the labor organization's
showing of interest, certify that it is in compliance with this chapter,
review and decide any issues or objections raised concerning the petition
or the appropriateness of the bargaining unit, and conduct a secret
ballot election as provided herein.
C.Â
Hearings. The Neutral Election Official or Election Official shall have the authority to convene a hearing for the purpose of addressing any and all issues relating to the petition. At the hearing, the parties shall have the opportunity to present evidence on any and all issues relating to the petition. The parties shall have the opportunity to present evidence on any and all issues relating to the petition. The parties shall have the right to submit briefs to the Neutral Election Official or Election Official. The Neutral Election Official or Election Official shall issue a reasoned written decision, including findings of fact and conclusions of law addressing all the issues referred to in Subsection B above and Subsection D below. The parties may appeal any determinations of the Neutral Election Official or Election Official to the Tribal Court and the Tribal Court's decision shall be final as to such issues. The Tribal Court shall adopt the decision of the Neutral Election Official or Election Official unless the Tribal Court determines, under a clear and convincing evidence standard of review, that the decision of the Neutral Election Official or Election Official is in conflict with tribal law. The decision of the Tribal Court shall be final, and there shall be no appeal to the Nottawaseppi Huron Band of the Potawatomi Indians Supreme Court.
D.Â
Determination of the appropriateness of bargaining unit. In determining
the appropriateness of a bargaining unit, the Neutral Election Official
or Election Official shall take into consideration but shall not be
limited to considering the following factors:
(1)Â
Consistent with the Bode'wadmi traditions and values that underlie
the Tribe's management of its commercial activities, it shall
be expressly recognized by the Neutral Election Official, Election
Official or any other appellate or reviewing body or entity, that
in order to protect orderly governmental operations of the Tribe and
to provide for the general welfare of the Tribe there is at all times
and under all circumstances the presumption in favor of the largest
appropriate bargaining unit and that the appropriate bargaining unit
shall consist, at a minimum, of all eligible employees within a division
or operating unit of the tribal employer;
(2)Â
That an appropriate bargaining unit is based on occupational groups
or groups of employees who share clear and identifiable communities
of interest in employment terms and conditions and related personnel
matters;
(3)Â
The impact and effects of over-fragmentation of bargaining units;
(4)Â
Principles of efficient administration of the tribal government;
and
(5)Â
Any history of collective bargaining for tribal employees.
E.Â
Limitation on petitions. If a labor organization's petition
and/or election effort is not successful it cannot initiate a new
petition for the same bargaining unit for a period of twenty-four
(24) months following the failed union organizational effort.
F.Â
Secret ballot election. When all issues, if any, relating to the petition have been resolved, the Neutral Election Official or Election Official shall conduct a secret ballot election of eligible voters if it determines that a valid petition has been filed. The ballot for the special election shall contain the name of any labor organization submitting a petition in compliance with Subsection A of this section, and contain clear language providing the tribal employees with a choice to either select the labor organization that filed the petition as the exclusive representative for the tribal employees within the bargaining unit or to choose not to be represented by any labor organization. Every secret ballot election shall be open to all tribal employees in the bargaining unit and operates as the functional expression of the tribal employees' choice of whether to organize and collectively bargain.
G.Â
Election result and appeal. If a majority (50% plus one) of the tribal
employees in the proposed bargaining unit votes in favor of a labor
organization, the Neutral Election Official or Election Official shall,
ten (10) days after the election, certify the labor organization as
the exclusive bargaining representative for the appropriate bargaining
unit. If a labor organization does not receive a majority vote for
the labor organization, then ten (10) days after the election the
Neutral Election Official or Election Official shall certify that
there is no exclusive representative of the bargaining unit.
H.Â
If either the tribal employer or the labor organization has a good
faith reason to believe that the election was not conducted in a fair
and impartial manner or that fraud prohibited or improper practices
affected the outcome of the election, the tribal employer or labor
organization may file such objections with the Neutral Election Official
or Election Official within ten (10) days after the election.
I.Â
The Neutral Election Official or Election Official shall conduct
such investigation as it deems appropriate to resolve such objections.
Whether to hold an evidentiary hearing on such objections shall be
within the discretion of the Neutral Election Official or Election
Official.
J.Â
Any determination of the Neutral Election Official or Election Official
on such objections to the election must be issued in a reasoned written
decision, including findings of fact and conclusions of law, and may
be appealed to the Tribal Court and its decision is final on such
issues. The Tribal Court shall adopt the decision of the Neutral Election
Official or Election Official unless the Tribal Court determines,
under a clear and convincing evidence standard of review, that the
decision of the Neutral Election Official or Election Official resulted
from fraud or bias or is in direct conflict with tribal law. The decision
of the Tribal Court shall be final, and there shall be no appeal to
the Nottawaseppi Huron Band of the Potawatomi Indians Supreme Court.
K.Â
Time limitation. No election shall be directed or held in any bargaining
unit within which an election has been conducted in the twelve-month
period immediately preceding the petition for election.
L.Â
Guards or other security personnel. A labor organization shall not
be certified as the representative of employees in a bargaining unit
of guards or other security personnel if such organization admits
to membership, or is affiliated directly or indirectly with an organization
which admits to membership, employees other than guards or other security
personnel.
Except as otherwise provided by this chapter, if a labor organization
is lawfully selected to be the exclusive bargaining representative
of a bargaining unit of tribal employees, the tribal employer and
the labor organization shall:
A.Â
Bargain in good faith on wages, hours, and other terms and conditions
of employment and other issues agreed to by the parties, provided
that neither management nor the exclusive representative shall be
required to agree to a proposal or to make a concession; and
B.Â
Enter into written collective bargaining agreements covering employment
relations.
C.Â
The obligation to bargain in good faith is required by our Bode'wadmi traditions and values that underlie the Tribe's management of its commercial activities as an entity of the tribal government performing tribal operations. The obligation to bargain collectively imposed by this section, however, shall not be construed to require the tribal employer and an exclusive representative to negotiate over matters that would conflict with the provisions of any other laws of the Tribe, including those contained in § 5.3-18 of this chapter, and in the event of a conflict between the provisions of any other laws of the Tribe and an agreement entered into by the tribal employer and the exclusive representative in collective bargaining, the laws of the Tribe shall prevail.
A.Â
A tribal employer shall not:
(1)Â
Interfere with, restrain, or coerce tribal employees in the exercise
of their rights guaranteed them under this chapter;
(2)Â
Dominate, interfere, or assist with the formation, existence or administration
of any labor organization, including financial support;
(3)Â
Encourage or discourage membership in any labor organization by discrimination
in regard to hiring, tenure, or other conditions of employment;
(4)Â
Discriminate in regard to hiring, tenure, or other conditions of
employment because of the tribal employee's, or nonmember tribal
employee's, exercise of rights under this chapter, including
because a tribal employee, or nonmember tribal employee, has signed
or filed an affidavit, petition, grievance, or complaint or given
information or testimony or filed a claim or charges under this chapter;
(5)Â
Refuse to bargain collectively, fail to bargain collectively in good
faith, or refuse to sign a final agreement agreed upon with the exclusive
bargaining representative.
B.Â
A labor organization or anyone acting on its behalf or its officers,
representatives, agents, or members shall not:
(1)Â
Interfere with, restrain, or coerce any tribal employee in the exercise
of any right set forth in this chapter, or interfere with, restrain,
or coerce management by reasons of its performance of duties or other
activities undertaken in the interests of the governmental operations
of the Tribe;
(2)Â
Restrain or coerce a tribal employer in the selection of its exclusive
representative for purposes of collectively bargaining;
(3)Â
Discriminate against a tribal employee with regard to labor organization
membership, or because of race, color, religion, creed, age, sex,
or national origin;
(4)Â
Cause or attempt to cause a tribal employer to discriminate against
a tribal employee because of the employee's membership or nonmembership
in a labor organization or attempt to cause a tribal employer to violate
any of the provisions of this chapter;
(5)Â
Force or require a tribal employer to recognize or bargain with a
particular labor organization as the representative of tribal employees
if another labor organization has been certified as the exclusive
representative of such tribal employees under the provisions of this
law;
(6)Â
Refuse to bargain collectively or fail to bargain collectively in
good faith or refuse to sign a final agreement agreed upon with management;
(7)Â
Refuse or fail to comply with a collective bargaining or other agreement
with a tribal employer;
(8)Â
Discriminate against a tribal employee because she or he has signed
or filed an affidavit, petition, or complaint or given any information
or testimony in any proceedings provided for in this chapter;
(9)Â
Participate in, condone or authorize a strike against the governmental
operations of the Tribe by instigating, supporting or failing to take
affirmative action to terminate a strike. Any violation of this subsection
shall subject the violator to the civil penalties provided in this
chapter;
(10)Â
Attempt to influence the outcome of a tribal government election
in any manner; provided, however, that this subsection does not apply
to a tribal employee who is a tribal member acting in his or her individual
capacity; or
(11)Â
Picket homes or private businesses of elected tribal officials
or tribal employees.
C.Â
Free speech. Notwithstanding the provisions of Subsections A and B, the parties shall have the right to voice their views consistent with the protections afforded by the Tribe's Constitution, and the expression of any arguments or opinions shall not constitute, or be evidence of, an unfair labor practice or of any other violation of this chapter, as long as such expression contains no promise of benefits or threat of reprisal or force.
A.Â
Arbitration.
(1)Â
When a question arises as to whether an unfair labor practice was
committed, the party charging the unfair labor practice charge may
file a written request for arbitration to the party charged with the
violation. Said charges must be filed within sixty (60) days of the
event complained of by the charging party.
(2)Â
If both parties agree to arbitration, charges of violations of the
duty to bargain in good faith and unfair labor practices provided
by this chapter may be brought before an arbitrator, mutually agreed
to and who's fees shall be shared equally by the parties within
thirty (30) days of the receipt by either party of a written demand
for arbitration or such later time as the arbitrator may promptly
schedule a hearing. If the parties are unable to agree upon an arbitrator,
they shall use the Federal Mediation and Conciliation Service (FMCS)
arbitrator selection procedure, provided that any arbitrator selected
through the FMCS labor arbitrator selection procedure shall be a member
of the National Academy of Arbitrators.
(3)Â
The selected arbitrator shall apply the laws of the Tribe to resolve
the charge, but in the absence of such law, the arbitrator shall apply
persuasive authority governing labor relations.
(a)Â
The arbitral forum herein established is intended to resolve
disputes over the interpretation or application of the matters expressly
covered by this chapter.
(b)Â
The arbitrator shall have no power to add to or subtract from
or modify this chapter.
(c)Â
The arbitrator shall have authority to fashion an appropriate
remedy; however all claims for back wages shall be limited to the
amount of wages that the employee would otherwise have earned less
any unemployment compensation or other compensation that he/she may
have received, and all costs and attorney fees are to be paid for
by the party incurring said costs and fees.
B.Â
Judicial review.
(1)Â
A party who claims that the arbitrator's decision is in violation
of the laws of the Tribe may, within ten (10) days of receipt of the
arbitrator's decision, bring an appeal of the arbitrator's
decision to the Supreme Court for the Nottawaseppi Huron Band of the
Potawatomi Indians.
(2)Â
In any such appeal, the Supreme Court's review shall be limited
to review for errors of law or fact and the issuance of an order affirming
the arbitrator's decision or correcting it for legal error as
is necessary to render it in compliance with the law of the Tribe.
C.Â
Tribal Court. If both parties do not agree to bring the claim before
an arbitrator within thirty (30) days of the receipt by either party
of a written demand for arbitration, the Tribal Court shall have jurisdiction
over the claim. The party alleging the violation must file the complaint
with the Tribal Court within ninety (90) days from the date of the
violation which forms the basis of the complaint.
A.Â
Subjects not within procedures for resolving bargaining impasse. Nonmandatory subjects of bargaining shall not be subject to the impasse procedures of this section. Unless mutually agreed to by the parties, the impasse procedures of this section shall not be invoked during the pendency of any charge regarding the required scope of good faith bargaining under § 5.3-12.
B.Â
Mediation.
(1)Â
Mediation. Following the commencement of negotiations, if management
and the exclusive bargaining representative reach an impasse in negotiating
a labor contract, they shall jointly retain and pay for a mediator
to assist them in resolving the impasse issues. In the absence of
an agreement on the mediator, either party may request the Neutral
Election Official to appoint a mediator, and the Neutral Election
Official's appointment of such mediator shall be binding on the
parties. It shall be the function of the mediator to bring the parties
together to effectuate a settlement of the dispute, but the mediator
may not compel the parties to agree. Any appointed mediator shall
be experienced in labor mediation, and shall be drawn from lists of
such mediators maintained by the Federal Mediation and Conciliation
Service or the Michigan Employment Relations Commission.
(2)Â
Either party shall have the right to utilize the mediator's
services during a sixty-day period to assist the parties in reaching
a collective bargaining agreement. At the expiration of this sixty-day
period, the tribal employer may implement unilaterally its last offer
of settlement before the impasse occurred.
C.Â
Costs of impasse resolution proceedings. The tribal employer and
the exclusive bargaining representative shall share equally all fees
and costs of mediation, and fact finding provided for by this section.
D.Â
Status of terms and conditions of employment pending impasse resolution.
At all times when an impasse remains unresolved, the prior terms and
conditions of employment shall remain in effect even if a prior collective
bargaining agreement governing the bargaining unit has expired. In
such a setting, the terms of any prior collective bargaining agreement
shall continue in force and effect, including, but not limited to,
the continuation of any pay plan included in the agreement, until
a new agreement shall be executed; provided, however, that for the
purposes of this subsection, the continuing terms shall not include
fair share provisions and cost of living increases, and nothing in
this subsection shall require payments of cost of living increases
during the time period between contracts.
Collective bargaining agreements entered into by the tribal
employer and an exclusive bargaining representative shall have terms
of three (3) years or less.
A.Â
A member of a labor organization or of the bargaining unit may initiate the decertification process of a labor organization as the exclusive representative of a bargaining unit if 30% of the tribal employees in the bargaining unit make a written request to the Neutral Election Official for a decertification election. Decertification elections may be held in a manner prescribed by the Neutral Election Official and should generally follow the provisions contained in § 5.3-11.
B.Â
A request for a decertification election shall be made to the Neutral
Election Official:
C.Â
When an exclusive representative has been certified but no collective
bargaining agreement is in effect, the Neutral Election Official shall
not accept a request for a decertification election earlier than twelve
(12) months subsequent to a labor organization's certification
as the exclusive representative.
A.Â
Prohibition of collective bargaining affecting alcohol and drug testing
policies. Tribal employers shall have the right to address the terms
and conditions for testing employees for alcohol and drug use, consistent
with the laws of the Tribe, and such policies shall not be subject
to bargaining with any labor organization.
B.Â
Gaming regulations. The obligations imposed by this chapter shall
not be construed to diminish the authority or power of the Gaming
Commission or any other regulatory body to regulate the conduct of
gaming activities and safeguard the integrity of gaming conducted
on the Tribe's Reservation. As such tribal employers shall not
have an obligation to bargain with any labor organization regarding
regulatory matters, including but not limited to the following:
(1)Â
The standards for the issuance of tribal gaming licenses. Tribal
and federal laws require the issues of tribal gaming licenses and
such conditions of licensing shall not be the subject of bargaining
with any labor organization;
(2)Â
Enforcement of laws, regulations, and procedures concerning gaming
operations or gaming facilities and any entity's authority to
conduct investigations and hold hearings regarding violations of the
same;
(3)Â
Ensuring the physical safety of gaming patrons and employees in any
gaming facility;
(4)Â
The physical safeguarding of assets transported to, within, and from
a gaming facility;
(5)Â
The prevention of illegal activity within a gaming facility or with
regard to gaming operations, including, but not limited to the maintenance
of employee procedures and surveillance systems;
(6)Â
Minimum employee and supervisor staffing requirements related to
the regulation of gaming operations;
(7)Â
The specifications, standards and procedures for each game or operations
related to gaming activities; and
(8)Â
The establishment and implementation of employee procedures designed
to permit detection of any irregularities, theft, cheating, fraud
or the like, consistent with industry practice.
C.Â
Indian or tribal preference. A tribal employer shall not be required,
or permitted, to bargain concerning the requirements imposed on employers
pursuant to tribal law and policy regarding Indian or tribal preference
concerning employment opportunities, including but not limited to
hiring, transfers, promotions, layoffs, training and retention.
Except as provided by § 5.3-18, in the event of a conflict between the personnel policies or procedures of a tribal employer and the provisions of a collective bargaining agreement entered into by a tribal employer and a labor organization, the latter shall control.
A.Â
Strikes: civil actions, penalties, decertification and exclusion. Any tribal employee or labor organization, and any employee or agent of any labor organization, that violates, or seeks to violate, the prohibition against strikes set forth in § 5.3-8 shall be subject to a civil action by the affected tribal employer for declaratory and injunctive relief in the Nottawaseppi Huron Band of the Potawatomi Indians Tribal Court. Upon a finding of any such violation by a labor organization or any person acting on behalf of a labor organization, the Court may impose a civil fine against the labor organization, not to exceed $100,000 per day of unlawful conduct for each violation. Upon a finding of any such violation by an employee, the Court may impose a civil fine against the employee not to exceed $100,000 per day of unlawful conduct. Any labor organization found by the Tribal Court to be in violation of the prohibition against strikes shall be deemed decertified from representing any tribal employees and shall further be deemed not legally entitled to be present on tribal lands and subject to exclusion on a temporary or permanent basis. The Tribal Court shall award to the tribal employer reimbursement of all costs and expenses incurred by the tribal employer for seeking enforcement of this provision, including but not limited to attorney fees.
B.Â
Lock outs: civil actions. A tribal employee or labor organization shall have the right to seek declaratory and injunctive relief in the Nottawaseppi Huron Band of the Potawatomi Indians Tribal Court against tribal employers to enforce the prohibition against lock outs set forth in § 5.3-9 of this chapter. Upon a finding by the Tribal Court that a tribal employer has violated § 5.3-9, the Tribal Court may fashion an appropriate remedy and award such employee or labor organization reasonable attorney fees and costs.
C.Â
Licenses: civil actions, penalties, exclusions. Any labor organization
that (1) engages in activities that require a license under this chapter
without such a license or (2) violates the terms of a license issued
by the Gaming Commission in accordance with this chapter shall be
subject to an action in the Tribal Court by the Gaming Commission,
or by the Tribe through its General Counsel, for declaratory and injunctive
relief. Any labor organization found by the Tribal Court to have violated
the licensing requirements of this chapter or the terms of a license
shall be subject to such civil penalty, not to exceed $5,000. Any
labor organization found by the Tribal Court to be in violation the
licensing requirements of this chapter or the terms of a license issued
by the Gaming Commission shall be deemed not legally entitled to be
present on tribal lands and subject to exclusion on a temporary or
permanent basis.
D.Â
Tribal Court jurisdiction.
(1)Â
Sovereign immunity. The Tribe hereby expressly waives its sovereign
immunity from suit for claims alleging violations of this chapter
against the Tribe in the Tribal Court solely for (1) actions for declaratory
and injunctive relief and attorney fees and costs and (2) actions
in the Tribal Court to enforce a collective bargaining agreement.
Nothing herein shall be construed as a waiver of the sovereign immunity
of the Tribe in the state or federal courts, or any other forum or
context.
(2)Â
Procedure. Subject to the provisions of this chapter providing otherwise,
any claim brought under this chapter must be commenced by the filing
of a complaint with the Tribal Court within one hundred eighty (180)
days from the date of the violation(s) or threatened violation(s)
of the chapter which forms the basis of the complaint.
