Sac & Fox Industries

National Labor Relations Board - Board Decisions

Apr 24, 1992

307 N.L.R.B. 241 (N.L.R.B. 1992)

241
307 NLRB No. 34
SAC & FOX INDUSTRIES
1 In the interim, on April 30, 1990, the Union also filed a motion
for reconsideration with the Regional Director. The Regional Direc-
tor denied the motion by order dated May 11, 1990.
2 The Department of Interior’s position statement (arguing that the
Board may properly assert jurisdiction) was submitted by the Acting
Associate Solicitor for the Division of Indian Affairs. The AFL–CIO
and the Chamber of Commerce did not submit position statements.
3 Whether the decertification petition should nevertheless be dis-
missed as untimely as contended by the Union, we will leave to the
Regional Director to address in the first instance on remand.I. Find-
ings of Fact
4 The Tribe’s business committee is comprised of the Tribe’s prin-
cipal chief, second chief, secretary, treasurer, and one Committee
member who is elected by secret ballot. The Tribal constitution pro-
vides that the business committee shall have the power to transact
business and otherwise speak and act on behalf of the Tribe in all
matters on which the Tribe is empowered to act, subject in certain
specified circumstances to the approval of the governing council, the
supreme governing body of the Tribe composed of all Tribal mem-
bers 18 years of age and older.
5 The other facilities are in Cushing, Idabell, and Temple, Okla-
homa.
6 Our finding that the Commerce facilities are located off the Sac
and Fox Indian reservation is based on the following. First, accord-
ing to James Branum, the president of SFI, the Tribal reservation in-
cludes an area from Stroud that goes approximately 40 miles to the
north, approximately 40 miles to the south, about 35 miles to the
west, and about 15 miles to the east. In contrast, Branum testified
that it took nearly 3-1/2 hours to drive from Stroud to Commerce.
(We take administrative notice, based on the Rand McNally Road
Atlas map of Oklahoma, that Commerce is approximately 135 miles
northeast as the crow flies from Stroud.) Further, Branum specifi-
cally testified that the Commerce facilities are not on ‘‘what was the
original Sac and Fox reservation,’’ and that even though SFI ac-
quired the real estate as well as the structure and equipment in Com-
merce, he did not believe that the Commerce facilities would at that
time be perceived as part of the reservation. Finally, no party has
excepted to the Regional Director’s finding that the Commerce fa-
cilities are located some distance from the reservation. Although SFI
states in its brief in opposition to the Union’s request for review that
the Commerce facilities are located within the Quapaw Indian res-
ervation (a statement which in itself would appear to confirm that
they are not within the Sac and Fox reservation), the record is incon-
clusive on this point and we have been unable to locate any public
or other readily available documents verifying SFI’s statement.
Sac and Fox Industries, Ltd. and Patricia Maxson,
Petitioner and United Garment Workers of
America, Local 427, AFL–CIO. Case 17–RD–
1192
April 24, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 24, 1990, the Regional Director for Region
17 issued an order dismissing the petition in the above-
entitled proceeding on the ground that the Employer,
Sac and Fox Industries, Ltd., is owned and controlled
by the Sac and Fox Indian Tribe, and is therefore im-
plicitly exempt as a governmental entity within the
meaning of the Act.
Thereafter, on May 4, 1990, the Union filed a timely
request for review of the Regional Director’s order.1
The Union contended, inter alia, that the Regional Di-
rector’s order was not supported by Board precedent,
and that to the extent Board precedent may be deter-
mined to apply, it is incorrect and should be overruled.
The Union contended that the Board should assert ju-
risdiction and that the decertification petition should be
dismissed instead on the ground that it was untimely.
By telegraphic order dated February 21, 1991, the
Board granted the Union’s request for review. The
Board requested that the parties submit briefs on the
jurisdictional issue, and also served notice of the order
on the AFL–CIO, the Chamber of Commerce, and the
U.S. Department of Interior, Bureau of Indian Affairs
for statements of position on the issue.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record in the
proceeding, including the briefs submitted by the par-
ties and the statement of position submitted by the De-
partment of Interior.2 For the reasons set forth below,
we reverse the Regional Director and assert jurisdic-
tion.3
Sac and Fox Industries, Ltd. (SFI) is a nonprofit cor-
poration wholly owned by the Sac and Fox Indian
Tribe of Oklahoma (the Tribe). Its corporate office is
located at Stroud, Oklahoma, the Tribe’s national cap-
ital. The corporation is operated by the Sac and Fox
Industrial Development Commission (the Commission),
a Tribal agency created in 1983 by the Tribe’s busi-
ness committee for the purpose, inter alia, of providing
revenues for and developing economic and industrial
activities on behalf of the Tribe.4 The Commission was
specifically authorized to use the name ‘‘Sac and Fox
Industries, Ltd.’’ in any of its business activities within
or without the Tribal jurisdiction, and a certificate of
incorporation was issued to the Commission in that
name by the Tribal secretary in 1985. The Commission
is managed by a five-member board of directors, the
majority of whom must be Tribal members, appointed
by the Tribe’s principal chief with the advice and con-
sent of the business committee.
Sometime between October 1, 1988, and September
30, 1989, SFI secured a contract with the U.S. Depart-
ment of Defense (DOD) valued at close to $30 million
for the manufacture of 490,915 chemical resistant
suits. In order to perform this contract, between late
1989 and 1990 SFI acquired and/or opened facilities in
four Oklahoma towns, including facilities in Com-
merce, Oklahoma, the facilities involved in the instant
proceeding.5
Unlike SFI’s corporate office, the Commerce facili-
ties are located some distance from the Tribal reserva-
tion land.6 The facilities became available when the
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The parties stipulated that the former Heydt employees hired at
the Commerce facilities do significantly the same kind of work they
previously did.
8 In contrast to the low Tribal employment at SFI’s Commerce fa-
cilities, Branum testified that there was 96-percent Tribal employ-
ment at SFI’s Cushing plant. Branum testified that SFI currently had
some Tribal members in training at the Cushing plant to be relocated
to Commerce.
9 In setting the amounts, Branum testified that he is guided by the
board of directors’ direction, in so many words, that he should ‘‘be
right by the employees and take care of them.’’ In accordance with
this direction, Branum testified that he had recently pronounced that
Good Friday would be a paid holiday for all SFI employees. Branum
acknowledged, however, that SFI did not as yet offer its employees
any life or health insurance, retirement plan, vacations, or other
kinds of fringe benefits.
10 It is undisputed that the Union represented Heydt’s former pro-
duction, shipping, and warehouse employees and truckdrivers at the
Commerce facilities, and that it had a labor agreement with Heydt
covering these employees at the time SFI acquired the facilities. Al-
though SFI and the Union disagree over whether SFI agreed or had
an obligation to adopt the Heydt agreement, they stipulated that on
or about March 2, 1990, SFI agreed to commence negotiations with
the Union pursuant to a settlement of the Union’s unfair labor prac-
tice charges against SFI. According to Branum, the first negotiating
session with the Union occurred on April 4, 1990.
11 For example, Branum testified that the plant manager’s authority
to discharge an employee might depend on the situation. Branum
also testified that the plant manager would confer with him over cer-
tain high-level promotions.
12 The Union’s request for review does not dispute, and we find
based on the facts as set forth above, that the board of directors of
the Commission exercises significant control over SFI’s employment
policies.
former owner, the Francis E. Heydt Co. and its sub-
sidiary Dumas Manufacturing Company (Heydt), was
debarred from competing for government contracts.
According to President Branum, although there was
debate among the Commission’s board of directors and
among Tribal members about locating a Tribal enter-
prise at such a distance, it was ultimately decided that
the Commerce facilities were a buying opportunity that
SFI should pursue.
SFI hired Heydt’s former plant manager to be the
manager of the Commerce facilities. Former Heydt
employees also made up the majority of SFI’s initial
work force at the Commerce facilities. According to
Branum, himself a nonmember of the Tribe, only a
handful at most of the 90–100 production, shipping,
and warehouse employees hired at the Commerce fa-
cilities as of March 1990 were Tribal members, and
neither the manager nor any of the supervisors at the
Commerce facilities were Tribal members, although
some of the supervisors were members of other Indian
tribes. Branum testified that the reason these individ-
uals were hired rather than Sac and Fox members was
because they were already trained and had the nec-
essary experience,7 and because there were not many
Sac and Fox members in the Commerce area. Once
some Sac and Fox members became trained and ob-
tained some experience at SFI’s other facilities,
Branum testified, they would be relocated to Com-
merce.8 Branum testified that the Board of Directors
was adamant that Tribal members would also eventu-
ally ascend into management positions throughout the
facilities as they obtained the necessary experience.
According to Branum, the Commission’s board of
directors reviewed the labor cost projections during its
review of the DOD contract bid, and has authorized up
to a certain amount of money for such costs. Branum
testified that the board of directors also specifically de-
cided to continue paying employees at an individual
piece rate, although he himself set the exact amounts
based on the advice of his managers and some engi-
neering and economic analyses.9 According to
Branum, all employees are paid out of the same Com-
mission bank account, and any revenues beyond those
needed for the ongoing operation inure to the benefit
of the Tribe and are appropriated by the business com-
mittee or the governing Council as they see fit.
With respect to labor relations policies, Branum tes-
tified that the board of directors retains the ultimate
authority, and that any labor agreement would require
its approval.10 However, Branum testified that he actu-
ally formulated and administered labor policy for the
employees at the Commerce facilities based on the rec-
ommendations of the plant manager. Branum also testi-
fied that the plant manager had the authority to make
various day-to-day personnel decisions including, sub-
ject to certain possible exceptions,11 the hiring, firing,
and transferring of employees and supervisors.
II. ANALYSIS AND CONCLUSIONS
The sole issue presented for review in this pro-
ceeding is whether the Board lacks jurisdiction over
SFI at its Commerce, Oklahoma facilities because, as
outlined above, SFI is wholly owned and controlled by
the Sac and Fox Indian Tribe and its agency, the Sac
and Fox Industrial Development Commission.12 As
discussed below, we find that the Regional Director
erred in finding that SFI was exempt from jurisdiction;
that the cases he relied on are distinguishable on their
facts; and that applying the rules and standards estab-
lished, adopted, and/or approved by the Supreme Court
and the courts of appeal, it would effectuate the pur-
poses and policies of the Act to assert jurisdiction over
SFI in the instant proceeding.
In finding SFI exempt as a governmental entity
within the meaning of the Act, the Regional Director
relied on two prior Board decisions in which the Board
had declined to assert jurisdiction over tribal enter-
prises: Fort Apache Timber Co., 226 NLRB 503
(1976), and Southern Indian Health Council, 290
NLRB 436 (1988). Both cases are clearly distinguish-
able. In both cases the tribal enterprises were located
on the reservation, a fact repeatedly stressed by the
Board in finding that the assertion of jurisdiction
243SAC & FOX INDUSTRIES
13 See Fort Apache, supra at 505–506; Southern Indian Health
Council, supra at 437.
14 See generally Mescalero Apache Tribe v. Jones, 411 U.S. 145,
148 (1973) (noting, in holding that the State of New Mexico could
tax a tribal ski resort located off the reservation, that ‘‘tribal activi-
ties conducted outside the reservation present different consider-
ations’’). Accordingly, inasmuch as we find that Fort Apache and
Southern Indian Health Council are clearly distinguishable, we find
it unnecessary in this case to address the Union’s alternative argu-
ment that those cases were incorrectly decided and should be over-
ruled.
15 Compare Donovan v. Navajo Forest Products Industries, 692
F.2d 709 (10th Cir. 1982) (holding that Tuscarora rule was limited
or by implication overruled at least to the extent that it could be read
to apply to treaty or reservation lands by the Supreme Court’s later
decision in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982),
and that OSHA therefore did not apply to a tribal enterprise located
on reservation lands which were specifically protected by treaty from
intrusion by unauthorized non-Indians) with Donovan v. Coeur
d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985); Lumber Indus-
try Pension Fund v. Warm Springs Forest Products Industries, 939
F.2d 683 (9th Cir. 1991); and Smart v. State Farm Insurance Co.,
868 F.2d 929 (7th Cir. 1989) (applying Tuscarora rule in holding
that OSHA and ERISA, respectively, applied to tribal enterprises lo-
cated on reservation lands). See also Navajo Tribe v. NLRB, 288
F.2d 162 (D.C. Cir. 1961), cert. denied 366 U.S. 928 (1961) (citing
Tuscarora in holding that the NLRA applied to a private corporation
operating a uranium concentrate mill on the tribal reservation under
a lease agreement with the tribe).
16 See Donovan v. Coeur d’Alene Tribal Farm, supra (OSHA); and
Lumber Industry Pension Fund v. Warm Springs Forest Products In-
dustries, supra; and Smart v. State Farm Insurance Co., supra
(ERISA).
17 Navajo Tribe v. NLRB, supra at 165 fn. 4. See also State Bank
of India v. NLRB, 808 F.2d 526, 531 (7th Cir. 1986) (noting, in up-
holding the Board’s assertion of jurisdiction over a foreign-govern-
ment instrumentality doing business in the U.S., that ‘‘in passing the
[NLRA], Congress intended to and did vest in the [Board] the fullest
jurisdictional breadth constitutionally permissible under the Com-
merce Clause.’’ [Citations omitted.] [Emphasis in original.])
18 See Sec. 2(2), (3), and (6) of the Act. The only exemptions
specified in Sec. 2(2)’s definition of ‘‘employer’’ are: ‘‘the United
States or any wholly owned Government corporation, or any Federal
Reserve Bank, or any State or political subdivision thereof, or any
person subject to the Railway Labor Act . . . or any labor organiza-
tion (other than when acting as an employer), or anyone acting in
the capacity of officer or agent of such labor organization.’’
19 We reject SFI’s argument that the NLRA’s silence in this regard
actually distinguishes this case from Tuscarora, rendering the rule
set forth in that case inapplicable. It is true that the statute involved
in Tuscarora specifically dealt with Indians and their lands, and that
the Court’s statement in that case regarding the application of gen-
eral statutes could therefore be characterized as dictum. However, as
indicated above, it is dictum that was supported by prior Court deci-
sions involving the Internal Revenue Act, decisions in which the
Court had made no mention of any provision in the subject statute
addressing Indians. Moreover, it is dictum that has guided many sub-
sequent decisions of the circuit courts. See cases cited at fn. 15,
supra.
would interfere with the tribes’ powers of internal sov-
ereignty.13 Thus, while it is true that in both cases the
Board ultimately concluded that the tribal enterprises
were implicitly exempt as governmental entities within
the meaning of the Act, neither case is directly control-
ling in this case where the subject facilities are located
well outside the Tribal reservation.14
Further, we find that the result reached in Fort
Apache and Southern Indian Health Council would be
inappropriate in this case. The general rule of construc-
tion for determining whether a Federal statute covers
Indians and their property interests was set forth in the
Supreme Court’s opinion in Federal Power Commis-
sion v. Tuscarora Indian Nation, 362 U.S. 99 (1960).
In Tuscarora, the Court was asked to decide whether
certain nontreaty lands purchased and owned in fee
simple by the Tuscarora Indian Nation could be taken
for a hydroelectric power project, upon payment of just
compensation, by the New York Power Authority
under the provisions of the Federal Power Act. In
holding that such a taking was permitted, the Court re-
jected the Tuscarora Tribe’s argument that the Federal
Power Act, being only a general Act of Congress, did
not apply to Indians or their lands. Citing prior deci-
sions in which the Court had upheld the application of
the Internal Revenue Act to Indians, the Court stated:
‘‘it is now well settled by many decisions of this Court
that a general statute in terms applying to all persons
includes Indians and their property interests.’’ 362 U.S.
at 116.
Although there is some disagreement among the
courts whether this rule should apply to Indian prop-
erty interests that are on treaty or reservation lands as
well as those that are on nontreaty lands,15 we find
that it is clearly applicable in the instant circumstances.
As indicated above, SFI’s Commerce facilities are not
on the Sac and Fox reservation, and there is no conten-
tion that the land underlying those facilities is pro-
tected by a treaty between the Sac and Fox Nation and
the Federal Government. Further, there is little ques-
tion that the NLRA is a statute of general applicability.
Like various other Federal employment-related statutes
which have been held to be of general applicability,16
the NLRA’s jurisdictional definitions of ‘‘employer,’’
‘‘employee’’ and ‘‘commerce’’ are of ‘‘broad and
comprehensive scope,’’17 containing only a few speci-
fied exemptions.18 Nowhere in the list of exemptions
or elsewhere in the statute is there any mention of In-
dians or their off-reservation enterprises.19 Thus, the
Tuscarora rule clearly applies, and contrary to the re-
sult in Fort Apache and Southern Indian Health Coun-
cil in which the tribal enterprises were located on the
reservation, we cannot conclude in this case that SFI
is exempt from the coverage of the Act at its Com-
merce facilities merely because those facilities are
owned and controlled by the Tribe.
This is only the beginning and not the end of our
analysis, however. In the years following Tuscarora,
the circuit courts have recognized several exceptions to
the general rule in that case. As the Ninth Circuit stat-
ed in Donovan v. Coeur d’Alene Tribal Farm, supra at
1116:
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 We recognize, as is obvious from the last of the exceptions
itself, that these exceptions were developed in cases involving Indian
or tribal activities on the reservation. Nevertheless, as suggested by
the position statements submitted by the Union and the Department
of Interior, we find that they may constructively be applied in ana-
lyzing the propriety of asserting jurisdiction over off-reservation trib-
al activities as well. We express no opinion, however, whether we
are required to apply them in the latter situation.
21 See Donovan v. Coeur d’Alene Tribal Farm, supra at 1116.
22 See Lumber Industry Pension Fund v. Warm Springs Forest
Products Industries, supra at 685; and Smart v. State Farm Insur-
ance Co., supra at 935–936.
23 See Donovan v. Coeur d’Alene Tribal Farm, supra at 1116
(holding that the tribal self-government exception was intended to be
limited to such matters).
24 The fact that SFI may be ‘‘nonprofit’’ and sells all of its manu-
facturing product to the Department of Defense, is not a basis for
distinguishing it from other manufacturers subject to the Act. See
generally Woods Hole Oceanographic Institution, 143 NLRB 568
(1963). See also St. Aloysius Home, 224 NLRB 1344, 1345 (1976).
Further, SFI stipulated at the hearing to facts establishing that it
meets the Board’s ‘‘commerce’’ standards for asserting jurisdiction.
25 NLRB v. American National Insurance Co., 343 U.S. 395, 402
(1952). The employer’s bargaining obligation under the Act is only
to bargain in ‘‘good faith.’’ This includes the obligation to meet at
reasonable times with the employees’ representative and confer in
good faith over wages, hours, and other terms and conditions of em-
ployment, or the negotiation of an agreement or any question arising
thereunder, and to execute a written contract incorporating any
agreement reached if requested. See Sec. 8(d) of the Act. It also in-
cludes the obligation to provide relevant and necessary information
requested by the employees’ representative. See NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956).
26 Although SFI introduced at the hearing a bound collection of
treaties and agreements between the Sac and Fox Nation and the
Federal Government (Exh. 1), it did not identify any provision in
that document which it contended would bar application of the
NLRA to an off-reservation Tribal enterprise. Nor has our own re-
view of that document revealed any provision which, even under its
most liberal construction, could be so construed.
There are, however, three exceptions to [the Tus-
carora] principle. A federal statute of general ap-
plicability that is silent on the issue of applica-
bility to Indian tribes will not apply to them if:
(1) the law touches ‘‘exclusive rights of self-gov-
ernance in purely intramural matters’’; (2) the ap-
plication of the law to the tribe would ‘‘abrogate
rights guaranteed by Indian treaties’’; or (3) there
is proof ‘‘by legislative history or some other
means that Congress intended [the law] not to
apply to Indians on their reservations . . . .’’ [Ci-
tations omitted.] In any of these three situations,
Congress must expressly apply a statute to Indians
before we will hold that it reaches them.
See also Lumber Industry Pension Fund v. Warm
Springs Forest Products Industries, supra; Smart v.
State Farm Insurance Co., supra at 932–933; and Nero
v. Cherokee Nation of Oklahoma, 892 F.2d 1457,
1462–1463 (10th Cir. 1989) (citing Coeur d’Alene and
applying some or all of same three exceptions). Before
affirmatively concluding that the Board may assert ju-
risdiction over SFI in this proceeding, we consider
each of these exceptions in turn.20
(1) Whether the NLRA ‘‘touches exclusive rights of
self-governance in purely intramural matters.’’ In eval-
uating whether the application of a statute to a tribal
enterprise would interfere with the tribe’s rights of
self-government in purely intramural matters, the
courts have considered several factors. Thus, for exam-
ple, they have considered whether the tribal enterprise
is a normal commercial enterprise operating in inter-
state commerce, and whether it employs non-Indians as
well as Indians.21 In addition, they have considered
whether the statute would broadly and completely de-
fine the employment relationship between the tribe and
the employees, thereby usurping the tribe’s decision-
making power, or would simply impose certain regu-
latory requirements and standards for the employees’
protection.22 Finally, they have considered whether the
statute’s effects would extend beyond the activity of
the business enterprise to regulate purely intramural
matters such as tribal membership, inheritance rules, or
domestic relations.23
Applying these factors, we find that application of
the NLRA to SFI at its off-reservation Commerce fa-
cilities would not interfere with the Sac and Fox
Tribe’s rights of self-government in purely intramural
matters. First, as indicated above, SFI is engaged in a
normal manufacturing operation at those facilities,24
and all but a handful of its initial work force, a major-
ity of which had been employed by the previous non-
Tribal employer at the facilities doing substantially the
same kind of work, were not Tribal members. Second,
the NLRA would not broadly and completely define
the relationship between SFI and its employees. The
NLRA encourages the practice and procedure of col-
lective bargaining and protects workers’ rights of free-
dom of association and self-organization. It does not,
however, actually compel any agreement between the
employer and the employees; nor does it regulate the
substantive terms incorporated in an agreement.25 Fi-
nally, the NLRA’s effects would not extend beyond
the Tribe’s business enterprise to regulate purely intra-
mural matters such as Tribal membership, inheritance
rules, or domestic relations.
(2) Whether application of the NLRA would ‘‘abro-
gate rights guaranteed by Indian treaties.’’ SFI has
failed to identify, and our own review has not discov-
ered, any specific provision in any of the numerous
treaties between the Sac and Fox Nation and the Fed-
eral Government that would prohibit application of the
NLRA to an off-reservation Tribal enterprise.26 Fur-
245SAC & FOX INDUSTRIES
27 See State Bank of India, 229 NLRB 838 (1977). See also State
Bank of India, 262 NLRB 1108 (1982); and State Bank of India, 273
NLRB 267 (1984), enfd. 808 F.2d 526 (7th Cir. 1986).
28 See U.S. v. Red Lake Band of Chippewa Indians, 827 F.2d 380
(8th Cir. 1987), cert. denied 485 U.S. 935 (1988); and U.S. v.
Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir. 1986), cert. denied
481 U.S. 1069 (1987).
29 We therefore find it unnecessary to decide whether the Tribe has
waived its sovereign immunity.
30 Cf. State Bank of India cases, supra (asserting jurisdiction over
foreign-government instrumentality at its American branch offices).
31 Member Raudabaugh did not participate in the decisions in Fort
Apache and Southern Indian. He expresses no opinion as to whether
he agrees with the decisions in those cases.
ther, as previously indicated, there is no contention that
the land underlying the Commerce facilities is itself
protected by a treaty between the Sac and Fox Nation
and the Federal Government. Accordingly, we find that
application of the NLRA to SFI at those facilities
would not abrogate any Tribal rights guaranteed by
treaty.
(3) Whether there is proof ‘‘by legislative history or
some other means’’ that Congress intended the NLRA
not to apply to an off-reservation tribal enterprise. SFI
has not referred us to, and we are not aware of, any
discussion whatsoever in the legislative history of the
NLRA dealing with Indians. Nor is there any basis in
the language of the Act itself for inferring a Congres-
sional intent to exempt Indians or their off-reservation
tribal enterprises. Although the Board’s decision in
Fort Apache, supra, contains statements to the con-
trary, as previously indicated we read that decision as
limited to situations in which the tribal enterprise is lo-
cated on the reservation. To the extent our dissenting
colleague reads the Fort Apache decision more broad-
ly, finding in it an intent to exempt Indian tribes as
governmental entities regardless of where they are
doing business, we respectfully disagree. Contrary to
our dissenting colleague, we believe the only fair read-
ing of that decision is that the enterprise’s location on
the reservation was of controlling significance to the
Board. Indeed, the phrase ‘‘on the reservation’’ or its
equivalent appears no less than 10 times over the
course of the Board’s 4-page opinion—most signifi-
cantly, in the penultimate sentence of the text where
the Board sets forth its holding. Further, even if true,
as our dissenting colleague would read it, that Fort
Apache did in fact hold that all enterprises owned by
governmental entities are exempt from the Act wher-
ever they do business, this holding was implicitly over-
ruled less than a year later when the Board decided to
assert jurisdiction over foreign-government instrumen-
talities that do business within the territorial jurisdic-
tion of the United States.27 Our dissenting colleague
finds such cases ‘‘different’’ on the apparent ground
that, unlike foreign governments, Indian tribes are enti-
tled to an advantage in competing with private compa-
nies. We decline to endorse such a proposition in the
absence of a clear statutory mandate. The Act’s ex-
emption in Section 2(2) for a ‘‘political subdivision’’
of a ‘‘State’’ does not clearly include an off-reserva-
tion tribal enterprise. Accordingly, we find that appli-
cation of the NLRA to SFI in this proceeding would
not be contrary to Congressional intent.
Finally, SFI and our dissenting colleague, respec-
tively, argue that the Board should decline jurisdiction
because: (1) the Board would be barred by the Tribe’s
common-law sovereign immunity from obtaining court
enforcement of its orders against SFI, and (2) as a
practical matter, the Board should not assert jurisdic-
tion at the Tribe’s off-reservation Commerce facility
when the Board may not at the same time be asserting
jurisdiction at similar on-reservation facilities that are
also owned and controlled by the Tribe.
We reject both arguments. First, as domestic de-
pendent sovereigns, Indian tribes have no sovereign
immunity against the superior sovereign, the United
States.28 Thus, SFI’s contention that the Board would
be unable to obtain court enforcement of its orders
against SFI is simply incorrect.29 Second, we do not
find it particularly significant to our decision in the in-
stant case regarding SFI’s Commerce facility that some
of SFI’s other facilities may be located on the reserva-
tion. Even assuming arguendo that our dissenting col-
league is correct that the Board would not assert juris-
diction over SFI at such on-reservation facilities, this
is not a basis for declining jurisdiction over SFI at its
off-reservation Commerce facility.30
Accordingly, for all the foregoing reasons, in agree-
ment with both the Union and the Department of the
Interior we find that the Board has jurisdiction in the
instant proceeding.31
ORDER
It is ordered that the instant proceeding be remanded
to the Regional Director for Region 17 for further ap-
propriate action consistent with this Decision on Re-
view.
MEMBER DEVANEY, dissenting.
I agree with the Regional Director and would not as-
sert jurisdiction over the Tribal enterprise here, in ac-
cordance with the principles enunciated in Fort Apache
Timber Co., 226 NLRB 503 (1976) and Southern In-
dian Health Council, 290 NLRB 436 (1988). I view
the majority decision asserting jurisdiction in this case
as seriously undermining the continued viability of our
prior precedent.
In those cases, the Board declined to assert jurisdic-
tion over wholly Indian-owned and controlled enter-
prises located on reservations. In Fort Apache, the
Board’s lead case in the area, the Board framed the
issue as ‘‘whether an Indian tribal governing council
qua government, acting to direct the utilization of trib-
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 After an extensive analysis and review of the legal status of In-
dian Americans, the Board noted the unique character of Indian na-
tions as resembling states in many ways, although not so precisely
defined. Although it did not strictly analogize the tribal council to
a state, the Board concluded in Fort Apache that there was sufficient
government control over the tribal enterprise to bring it within the
purview of the Hawkins test. It stated that ‘‘[r]egardless of the par-
ticular label applied . . . it is clear beyond peradventure that a tribal
council such as the one involved herein—the governing body on the
reservation—is a government both in the usual meaning of the word,
and as interpreted and applied by Congress, the Executive, and the
Courts.’’ Fort Apache at 506, footnotes omitted. The Ninth Circuit,
in Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1163 (9th
Cir. 1990), similarly viewed Indian tribes, although not technically
states, as like states in their presence within the United States as
units of government. Other cases, such as Smart v. State Farm Insur-
ance Co., 868 F.2d 929 (7th Cir. 1989), have described tribes as dis-
tinct, independent, political communities but without the full at-
tributes of sovereignty.
2 Sec. 2(2) defines the term ‘‘employer’’ to exclude ‘‘any State or
political subdivision thereof.’’ The Act does not define a political
subdivision. The Board has historically defined ‘‘political subdivi-
sion’’ consistent with the Hawkins test to apply to any entity which
is either created directly by the State so as to constitute a department
or administrative arm of government, or administered by individuals
who are responsible to public officials or the general electorate.
3 The Board declined to apply Fort Appache in another case, Dev-
ils Lake Sioux Mfg. Corp., 243 NLRB 163 (1979), but that case was
clearly factually distinguishable from this one. Devils Lake Sioux
Mfg. Corp., involved a nontribal employer which leased reservation
property. The Board in that case relied on the clear distinction be-
tween a nontribal enterprise and Fort Apache, which involved a
wholly owned tribal enterprise completely directed by the tribal
council. The council in Fort Appache contracted with a nontribal in-
dividual for management services as did the Sac and Fox Industrial
Development Commission at issue here.
al resources through a tribal commercial enterprise on
the tribe’s own reservation, is an ‘employer’ within the
meaning of the Act.’’ Fort Apache at 504. The Board
concluded that the tribal council was akin to a state or
government, and thus the tribal enterprise was implic-
itly exempt from the definition of ‘‘employer’’ under
Section 2(2) of the Act because it came within the po-
litical subdivision exception.1 Specifically, the Board
used the well-established test set forth in NLRB v. Nat-
ural Gas Utility District of Hawkins County, 402 U.S.
600 (1971), to conclude that the enterprise did not
meet the Board’s statutory definition of ‘‘employer’’
as it is a government entity administered by individ-
uals responsible to the tribal council.2
The majority rejects the application of Fort Apache
to this case because it believes that the fact that the
facility here is not on the reservation is dispositive.3 I
find no support in Board law for this distinction. No
case directly addresses the unique set of facts pre-
sented here where a tribal entity completely owns and
controls a facility located outside the reservation, but
I view the holding of Fort Apache as providing firm
support for a refusal to assert jurisdiction. The thrust
of both Fort Apache and Southern Indian Health
Council is that the tribal enterprises were found to be
exempt as government entities within the meaning of
Section 2(2) of the Act under the Hawkins test. That
test focuses on the identity of the party controlling the
enterprise, consistent with the statutory mandate that
the Board not interject itself into the labor relations of
government entities. Thus, because the tribal enter-
prises in Fort Apache and Southern Indian Health
Council were administered by individuals responsible
to the tribes, the enterprises were found to be exempt.
Similarly, the enterprise here, although located off the
reservation, is certainly owned and controlled by indi-
viduals responsible to the Tribe. Thus, the enterprise
would clearly come within the literal language of the
Hawkins test.
The majority finds significant several references in
Fort Apache and Southern Indian Health Council to
the fact that the enterprises involved in those cases
were located on the reservations. However, a fair read-
ing of those decisions demonstrates that this fact is not
controlling. Rather, the Board was concerned with the
question of ‘‘whether an action impinges on the inde-
pendence of individual Indians on a reservation or on
the governing body of the tribe,’’ (emphasis added)
with the test being ‘‘whether an action ‘infringed on
the right of reservation Indians to make their own laws
and be ruled by them.’’’ Fort Apache at 502; emphasis
in original, footnote omitted. Thus, although in Fort
Apache the Board made reference to the fact that the
enterprise was located on the reservation, it was con-
cerned with the issue of whether the independence of
the tribe or the reservation Indians was being com-
promised. Limiting this inquiry to enterprises geo-
graphically located on tribal land does not give suffi-
cient deference to the self-government policy concerns
that were a principal foundation of Fort Apache and
Southern Indian Health Council.
The majority eschews the Board’s Fort Apache
precedent in favor of the general rule of construction
set forth in Federal Power Commission v. Tuscarora
Indian Nation, 362 U.S. 99 (1960), and finds that the
Act is a statute of general applicability with jurisdic-
tional definitions broad enough to include Indians and
their off-reservation enterprises. However, the majority
concedes that the general rule articulated in Tuscarora
has no applicability where a statute’s jurisdictional
definitions specifically exclude Indian tribes and enter-
prises. I believe the Act does contain such a specific
exclusion in the definition of employer in Section 2(2),
as interpreted by Hawkins, and Tuscarora is therefore
inapposite here.
My colleagues make much of widespread applica-
tion of Tuscarora to a variety of statutes. I view these
cases as distinguishable because none of those statutes
contained language such as that in Section 2(2) of the
Act, as interpreted under Hawkins. This distinction was
recognized by the Ninth Circuit Court of Appeals in
Confederated Tribes of Warm Springs Reservation v.
247SAC & FOX INDUSTRIES
4 Although the Department of the Interior’s Division of Indian Af-
fairs has submitted a position statement asserting that the Regional
Director was incorrect under a Tuscarora analysis, I view the Board
and not the DIA as the expert in analyzing the Act’s jurisdictional
provisions.
Kurtz, 691 F.2d 878, 880 fn. 1 (9th Cir. 1982). In
holding that an Indian tribe was not exempt from ap-
plication of the Internal Revenue Code as a state or
political subdivision, the court rejected the tribe’s reli-
ance on the Board’s Fort Apache decision as support
for its exemption from the Federal tax laws. I note that
the court did not reject the Board’s approach, but rath-
er found Fort Apache inapposite because classifica-
tions under Federal labor laws are not controlling in
tax cases. Significantly, the court noted that the Board
had made its finding that the Indian tribe had sufficient
government attributes to qualify under the National
Labor Relations Act’s broad government exemption
provision, which it found to be more inclusive than the
tax law provision before it. Thus, notwithstanding the
court decisions cited by the majority applying Tusca-
rora I would not abandon the Board’s sensible prece-
dent tailored to its special needs and statutory require-
ments.4
There are also strong policy reasons against assert-
ing jurisdiction in this case. The spirit of the Board’s
Fort Apache decision clearly is to allow tribal enter-
prises to operate freely without Board intervention. I
do not believe the majority view complies with the
spirit of that decision. In this regard, this case is dif-
ferent than cases involving, for example, foreign gov-
ernments, in which the Board policy has been not to
allow commercial enterprises owned by such govern-
ments to gain an advantage in competing with private
sector companies.
The record also indicates that at least one of the
Tribal enterprise’s other plants is located within the
territorial limits of the Sac and Fox Reservation, in
Cushing, Oklahoma. From my perspective it does not
make practical sense for the Board to assert jurisdic-
tion with respect to the Commerce, Oklahoma facility
when it is not asserting jurisdiction over similar facili-
ties with identical ownership and control solely on the
basis of geographic location. Regardless of the location
of the facility, the Board is entangling itself in the op-
eration of the same Tribal enterprise.
In sum, I believe it would not effectuate the pur-
poses and policies of the Act to assert jurisdiction
here. Therefore I respectfully dissent.