Casino Pauma v. NLRB , 888 F.3d 1066 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CASINO PAUMA, an Enterprise of the No. 16-70397
Pauma Band of Luiseno Mission
Indians of the Pauma and Yuima NLRB No.
Reservation, a federally recognized 21-CA-125450
Indian Tribe,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
UNITE HERE INTERNATIONAL UNION,
Intervenor.
2 CASINO PAUMA V. NLRB
NATIONAL LABOR RELATIONS No. 16-70756
BOARD,
Petitioner, NLRB No.
21-CA-125450
v.
CASINO PAUMA, an Enterprise of the OPINION
Pauma Band of Luiseno Mission
Indians of the Pauma and Yuima
Reservation, a federally recognized
Indian Tribe,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted November 9, 2017
Pasadena, California
Filed April 26, 2018
Before: Richard Linn,* Marsha S. Berzon, and Paul J.
Watford, Circuit Judges.
Opinion by Judge Berzon
*
The Honorable Richard Linn, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
CASINO PAUMA V. NLRB 3
SUMMARY**
Labor Law / Tribal Law
The panel granted the National Labor Relations Board’s
petition for enforcement of its order; denied Casino Pauma’s
petition for review; and upheld the Board’s conclusions that
it may apply the National Labor Relations Act (“NLRA”) to
the relationship between employees working in commercial
gaming establishments on tribal lands and the tribal
governments that own and manage the establishments, and
that Casino Pauma committed unfair labor practices in
violation of the NLRA by trying to stop union literature
distribution.
The panel held that the Board affirmatively waived any
preclusion defense before this court, deciding instead to
litigate the question of its ability to regulate tribes under the
NLRA on the merits.
The panel held that although the NLRA was ambiguous
as to its application to tribal employers, the Board’s
determination that such employers were covered by the
NLRA was a “reasonably defensible” interpretation of the
NLRA. The panel also held that, contrary to Casino Pauma’s
contentions, application of federal Indian law did not produce
a different result in this case. The panel held that there was
no conflict between the NLRA and the Indian Gaming
Regulatory Act, and concluded that Casino Pauma’s compact
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CASINO PAUMA V. NLRB
with California did not displace the application of the NLRA
to its activities.
The panel held that there was no exhaustion bar to
consideration of Casino Pauma’s main argument under
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), that
it did not violate NLRA section 8(a)(1) when it prevented
employees from distributing union literature to customers in
front of the casino. The panel concluded that the Board
properly interpreted Republic Aviation’s holding concerning
NLRA section 7 to reach employees’ customer-directed union
literature distribution on non-work time in non-work areas of
the employer’s property. The panel further held that the
Board reasonably applied to Casino Pauma its literature
distribution rules concerning casinos. The panel held that
the Board’s conclusion that Casino Pauma violated its
employees’ NLRA right to distribute union literature was
adequately supported, both by the applicable legal principles
and the record.
COUNSEL
Cheryl Ann Williams (argued) and Kevin M. Cochrane,
Williams & Cochrane LLP, Temecula, California, for
Petitioner.
Heather Stacy Beard (argued), National Labor Relations
Board, Washington, D.C.; Kristin L. Martin (argued) and
Richard G. McCracken, McCracken Stemerman & Holsberry
LLP, San Francisco, California; for Intervenor.
Linda Dreeben, Deputy Associate General Counsel; John H.
Ferguson, Associate General Counsel; Jennifer Abruzzo,
CASINO PAUMA V. NLRB 5
Deputy General Counsel; Richard F. Griffin Jr., General
Counsel; Heather S. Beard, Attorney; Jill A. Griffin,
Supervisory Attorney; National Labor Relations Board,
Washington, D.C.; for Respondent.
Lloyd B. Miller and Rebecca A. Patterson, Sonosky
Chambers Sachse Miller & Munson LLP, Anchorage, Alaska;
Frank S. Holleman, Sonosky Chambers Sachse Endreson &
Perry LLP, Washington, D.C.; for Amici Curiae Fort Peck
Assiniboine and Sioux Tribes, Port Gamble S’Klallam Tribe,
Puyallup Tribe, and Quinault Indian Nation.
Dorothy Alther and Mark Radoff, California Indian Legal
Services, Escondido, California; Denise Turner Walsh,
Attorney General, Rincon Band of Luiseño Indians, Valley
Center, California; for Amici Curiae California Nations
Indian Gaming Association, Southern California Tribal
Chairmen’s Association, California Association of Tribal
Governments, and Rincon Band of Luiseño Indians.
OPINION
BERZON, Circuit Judge:
We consider whether the National Labor Relations Board
(“NLRB” or “the Board”) may regulate the relationship
between employees working in commercial gaming
establishments on tribal land and the tribal governments that
own and manage those establishments. After addressing
various preclusion questions, we uphold the Board’s
conclusion that it may apply the National Labor Relations Act
(“NLRA”) to that relationship, in accord with its usual
process. We also consider whether the Board permissibly
6 CASINO PAUMA V. NLRB
applied the rule regarding employee solicitation established
in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798
(1945), to customer-directed union literature distribution, and
we hold that it did.
I.
The Pauma Band of Mission Indians (“Pauma Band” or
“Tribe”) owns Casino Pauma, located on the Tribe’s
reservation in Pauma Valley, California. About 2,900
customers visit Casino Pauma each day. The Casino employs
462 employees, five of whom are members of the Pauma
Band; the parties stipulated that “[t]he vast majority of
[Casino Pauma’s] employees and managers are not members
of any Native American Tribe.”
In 2013, UNITE HERE (“Union”) began an organizing
drive at Casino Pauma. Over the course of a day in
December 2013, nine Casino Pauma employees distributed
Union leaflets to customers at the casino’s front entrance.
Some of the employees stood on the sidewalk at the entrance
to the casino’s valet driveway, and some at the exit, all facing
the casino’s customer parking lot. Several times during the
day security personnel for Casino Pauma told the employees
that they could not distribute flyers near the valet driveway,
directing them instead to distribute flyers at the back of the
casino, near the employee-only entrance. When the leafleting
employees asked what would happen if they stayed at the
valet entrance, the security employees told them they would
be reported to human resources and disciplined, and that they
could potentially lose their jobs. Each group of employees
stopped distributing leaflets after being told to do so. In the
afternoon, a security guard took a picture of two leafleting
employees.
CASINO PAUMA V. NLRB 7
The next month, in January 2014, another Casino Pauma
employee handed out Union flyers to several employees
waiting to clock out at the end of their shifts. The time clock
was located in a hallway near the employee cafeteria. The
leafleting employee was on her break. The three employees
to whom she gave flyers had not yet clocked out for the end
of their shift, but were standing in line to do so; all three
clocked out within “about 30 seconds” of receiving the flyers.
In March, Casino Pauma issued the leafleting employee a
disciplinary warning for distributing the flyers.
The General Counsel of the NLRB filed several
complaints concerning the literature distribution incidents.1
The complaints were consolidated, and an Administrative
Law Judge (“ALJ”) presided over a three-day trial. The ALJ
held that Casino Pauma violated the National Labor Relations
Act, 29 U.S.C. § 151 et seq., in most of the ways the General
Counsel alleged—in particular, it committed unfair labor
practices by trying to stop union literature distribution in
guest areas at the casino’s front entrance and in non-working
areas near its employees’ time clock. A three-member panel
1
Specifically, the General Counsel alleged that Casino Pauma
violated NLRA section 8(a)(1), 29 U.S.C. § 158(a)(1): “(1) [by]
maintaining a rule in its employee handbook prohibiting distribution of
literature in ‘working or guest areas’ at any time; (2) by interfering with
the distribution of union literature by employees near the public entrance
to its casino; (3) by threatening employees with discipline for distributing
union literature at that location; (4) by taking a photograph of an employee
who was distributing union literature; (5) by interrogating an employee
about her union activity; and (6) by directing an employee to keep a
discussion about possible discipline as confidential.” The complaint also
alleged that Casino Pauma committed unfair labor practices under NLRA
sections 8(a)(1) and 8(a)(3) by (7) “issuing a written disciplinary warning
to an employee for engaging in union activity”—in particular, distributing
union literature near the employees’ time clock.
8 CASINO PAUMA V. NLRB
of the Board affirmed the ALJ’s rulings and findings and
adopted a slightly modified version of the ALJ’s order.
Casino Pauma (Casino Pauma II), 363 N.L.R.B. No. 60
(Dec. 3, 2015).
In so doing, the Board relied on a jurisdictional finding
involving the same parties it had made earlier that year in
Casino Pauma (Casino Pauma I), 362 N.L.R.B. No. 52 (Mar.
31, 2015), a Board decision from which neither party sought
judicial review. In Casino Pauma I, which concerned other
unfair labor practices that took place at the same casino in
April 2013, the Board rejected Casino Pauma’s argument that
it was a government entity not subject to the NLRA. Id. at 1
n.3; 3–4. Although Casino Pauma renewed this argument in
Casino Pauma II, the case now before this panel, the Board
held that “the doctrine of issue preclusion . . . forecloses the
Respondent from arguing that the Board lacks jurisdiction.”
Casino Pauma II, 363 N.L.R.B. No. 60 at 1 n.1.
After the Board issued its decision in Casino Pauma II, it
timely petitioned this court for enforcement of its order,
29 U.S.C. § 160(e), and Casino Pauma filed a separate
petition for review, 29 U.S.C. § 160(f). We consolidated the
two petitions. UNITE HERE intervened in opposition to
Casino Pauma. See Int’l Union, United Auto., Aerospace &
Agric. Implement Workers, Local 283 v. Scofield, 382 U.S.
205, 208 (1965).
II.
Casino Pauma argues that the Board misinterpreted the
NLRA and principles of federal Indian law by adjudicating
unfair labor charges against it in light of its status as a
tribally-owned business operating on tribal land. Before
CASINO PAUMA V. NLRB 9
addressing this argument, we consider whether Casino Pauma
is precluded from making it.2
The Union, but not the Board, contends that Casino
Pauma is issue-precluded from arguing before us that it may
not be regulated by the Board under the NLRA. The Union
notes that the issue was resolved by the NLRB in a previous
decision, Casino Pauma I, and that the Casino did not seek
judicial review of that decision.
The Union is correct that collateral estoppel, also known
as issue preclusion, “is not limited to those situations in
which the same issue is before two courts. Rather, where a
single issue is before a court and an administrative agency,
preclusion also often applies.” B & B Hardware v. Hargis
Indus., 135 S. Ct. 1293, 1303 (2015). Generally speaking, so
long as “an administrative agency is acting in a judicial
capacity and resolv[ing] disputed issues of fact properly
before it which the parties have had an adequate opportunity
to litigate,” United States v. Utah Const. & Mining Co.,
384 U.S. 394, 422 (1966), “the federal common law rules of
preclusion . . . extend to . . . administrative adjudications of
legal as well as factual issues, even if unreviewed,” Guild
Wineries & Distilleries v. Whitehall Co., 853 F.2d 755,
758–59 (9th Cir. 1988). Further, this court has held that
preclusion “doctrines apply to administrative determinations
. . . of the [National Labor Relations] Board.” Bldg.
2
We do not discuss here the application of preclusion doctrines within
administrative proceedings before the NLRB, i.e., we do not consider the
Board’s application of preclusion doctrines to prevent a party from re-
arguing an issue before it that the party had already argued in an earlier
Board proceeding. Instead, our focus is on the application of issue
preclusion in court, i.e., in the adjudication of petitions for review and
enforcement.
10 CASINO PAUMA V. NLRB
Materials & Constr. Teamsters v. Granite Rock Co., 851 F.2d
1190, 1195 (9th Cir. 1988); see Granite Rock Co. v. Int’l Bhd.
of Teamsters, 649 F.3d 1067, 1070 (9th Cir. 2011);
Paramount Transp. Systems v. Chauffeurs, Teamsters &
Helpers, Local 150, 436 F.2d 1064, 1065–66 (9th Cir. 1971).
In considering the issue-preclusive effect of NLRB
rulings, we have not before addressed the proposition, put
forth by the Board at oral argument in explanation of its
omission of a preclusion argument from its briefing in this
court, that preclusion doctrines do not apply to Board orders
as to which the Board has declined to seek judicial
enforcement. There may indeed be good reason not to apply
preclusion principles to unenforced Board orders. Unlike
other federal administrative determinations, the Board’s
orders do “not have the force of law.” 2 John E. Higgins, Jr.,
The Developing Labor Law 2990 (6th ed. 2012). “If the party
or parties against which a Board order has been issued refuse
to obey, the Board has no authority to compel compliance or
punish noncompliance” unless it “appl[ies] to an appropriate
U.S. court of appeals” for an order of enforcement. Id.; see
29 U.S.C. § 160(e). Orders not enforced by the Board thus do
not share the same status as many other administrative
matters “already resolved as between . . . [the] parties” by the
time they arrive at the courthouse; until enforced by the
courts, the Board’s orders may not be fully “resolved” for
preclusion purposes. Utah Constr. & Mining Co., 384 U.S.
at 422 (footnote omitted). A litigant may, for example,
legitimately wish to settle a case even if there is no
enforceable order, to save either time or money. Applying
preclusion to an unenforced order would discount the
opportunity presented in the NLRA’s enforcement scheme by
encouraging litigants to seek review where even minor unfair
labor practices, with minimal relief, are at stake.
CASINO PAUMA V. NLRB 11
But we need not resolve the preclusive effect in court of
unenforced NLRB determinations. Even if issue preclusion
principles fully applied to the NLRB’s unenforced decision
in Casino Pauma I, Casino Pauma would not be precluded
from making its arguments before us.
Issue preclusion is a waivable defense. Peterson v.
Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998);
Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 329
(9th Cir. 1995). The Board has affirmatively waived any
preclusion defense before this court, deciding instead to
litigate the question of its ability to regulate tribes under the
NLRA on the merits.
When a party “entitled to raise a preclusion defense fails
to do so, it may be concluded that a third party cannot undo
the waiver.” 18 Wright, Miller & Cooper, Federal Practice
and Procedure § 4405 (3d ed. 2017). So here. We are
disinclined to allow the Union to supply a preclusion defense
on behalf of the Board through the Union’s status as an
intervenor. The Union was not a party to the administrative
proceedings now on review; the Board, which was, may
legitimately wish for a resolution in the courts of the
jurisdictional issue advanced in the administrative
proceedings, so as to have it settled for other cases and
circumstances that it, but not the Union, will face in the
future.
The Board has intentionally relinquished any preclusion
defense, even though the primary burden of litigating the
issue before us falls on it. Although “we have the ability to
overlook waiver” when it comes to preclusion, Clements,
69 F.3d at 329, we will not do so here. We proceed to the
merits.
12 CASINO PAUMA V. NLRB
III.
Casino Pauma first challenges as unreasonable the
Board’s interpretation of the NLRA under which it has
adjudicated unfair labor charges against tribal employers.
Second, it vigorously argues that the Ninth Circuit’s
precedents concerning the applicability of federal statutes to
Indian tribes are wrong and outdated—but also, if those
precedents had been properly applied here, the Board would
have found Casino Pauma not an NLRA-covered employer.
We disagree on all counts. Although the NLRA is
ambiguous as to its application to tribal employers, the
Board’s determination that such employers are covered by the
Act is a “reasonably defensible” interpretation of the NLRA.
United Nurses Ass’ns. of Cal. v. NLRB, 871 F.3d 767, 777
(9th Cir. 2017) (internal quotation marks omitted). And,
contrary to Casino Pauma’s contentions, application of
federal Indian law does not produce a different result in this
case.
A.
The National Labor Relations Board is authorized to
resolve NLRA-covered disputes concerning employers
engaged in unfair labor practices “affecting commerce.”
29 U.S.C. § 160(a). In the NLRA, as relevant here, “[t]he
term ‘employer’ includes any person acting as an agent of an
employer, directly or indirectly, but shall not include the
United States or any wholly owned Government corporation,
or any Federal Reserve Bank, or any State or political
subdivision thereof . . . .” 29 U.S.C. § 152(2). The statute
thus exempts federal and state governments from its
application but is silent as to Indian tribes.
CASINO PAUMA V. NLRB 13
San Manuel Indian Bingo and Casino, 341 N.L.R.B. 1055
(2004), the Board’s controlling interpretation of the NLRA’s
application to tribes, held that the term “employer” in the
NLRA includes tribal employers, subject to certain prudential
limits not here relevant. As the Board acknowledged in San
Manuel, it had earlier taken several different approaches to
the NLRA’s coverage of tribal employers. First, in the 1970s
and 1980s, the Board held that tribal employers were
completely excluded from the NLRA. Then, in the 1990s, the
Board determined that tribal employers were subject to the
NLRA as long as the tribal enterprise was not located on
tribal land. San Manuel, 341 N.L.R.B. at 1056–57 (citing
Fort Apache Timber Co., 226 N.L.R.B. 503 (1976); S. Indian
Health Council, 290 N.L.R.B. 436 (1988); Sack & Fox
Indus., 307 N.L.R.B. 241 (1992); Yukon Kuskoswim Health
Corp., 328 N.L.R.B. 761 (1999)).
After summarizing these zigzagging precedents, San
Manuel concluded that the Board’s “jurisprudence in this area
during its 30 years of development has been inadequate in
striking a satisfactory balance between the competing goals
of Federal labor policy and the special status of Indian tribes
in our society and legal culture,” and that “[a]s a result, the
Board’s assertion of jurisdiction has been both underinclusive
and overinclusive.” San Manuel, 341 N.L.R.B. at 1056. In
particular, San Manuel noted that the NLRA’s definition of
an employer “[o]n its face . . . does not expressly exclude
Indian tribes from the Act’s jurisdiction.” Id. at 1058.
“[T]ribes are not a corporation of the Government and they
are not a Federal Reserve Bank,” “[n]or do Indian tribes meet
the Board’s or reviewing courts’ traditional definition of a
State or political subdivision thereof.” Id. Recognizing that
“[t]he Supreme Court ‘has consistently declared that in
passing the National Labor Relations Act, Congress intended
14 CASINO PAUMA V. NLRB
to and did vest in the Board the fullest jurisdictional breadth
constitutionally permissible under the Commerce Clause,’”
id. at 1057 (quoting NLRB v. Reliance Fuel Oil Corp.,
371 U.S. 224, 226 (1963) (emphasis in original)), San Manuel
held that section 152(2)’s exemptions “are to be narrowly
construed,” and should not be read to exempt an unmentioned
type of governmental entity. Id. at 1058.
San Manuel further noted that no historical or other
considerations suggest that tribes are exempt from the Act.
Congress apparently did not discuss the NLRA’s application
to tribes when adopting the Act, nor do any statutes
addressing tribal self-government mention the NLRA. Id.
Additionally, other federal employment statutes, such as Title
VII of the Civil Rights Act of 1964 and Title I of the
Americans with Disabilities Act, do define the word
“employer” to exclude Indian tribes; the absence of that
exclusion in the NLRA is reasonably given effect by
including tribes, the Board indicated. Id.
We have held plausible—but did not have occasion
definitively to rule upon—this same understanding of the
NLRA. In NLRB v. Chapa-De Indian Health Program, Inc.,
316 F.3d 995, 997 (9th Cir. 2003), the NLRB had issued a
subpoena to a tribal organization and sought to enforce it in
district court. Courts enforce such subpoenas unless “the
NLRB ‘plainly lacks’ jurisdiction.” Id. So the question
before this court was whether Indian tribes are “plainly” not
employers under the NLRA.
In Chapa-De, we recognized that “Indian tribes are not
expressly exempted from the scope of the NLRA’s definition
of ‘employer.’” Id. at 1001. And we were persuaded that the
NLRA could be interpreted to apply to tribal employers, as
CASINO PAUMA V. NLRB 15
the tribal organization there did not identify any consideration
that “indicate[d] that Congress intended the NLRA not to
apply to Indian tribes . . . .” Id. Our conclusion was that the
NLRB did not “plainly lack[]” jurisdiction over the tribal
employer, and that the subpoena was therefore enforceable.
Id.
Unlike Chapa-De, this case requires us directly to address
the NLRA tribal coverage issue. Doing so, we uphold San
Manuel’s determination that tribal employers are subject to
the NLRA.
“The Chevron doctrine requires that this court defer to the
NLRB’s interpretation of the NLRA if its interpretation is
rational and consistent with the statute.” SEIU, United
Healthcare Workers-West v. NLRB, 574 F.3d 1213, 1214 (9th
Cir. 2009) (internal quotation marks omitted). San Manuel’s
holding that tribal employers are within the NLRA’s coverage
meets that standard, as it is a “reasonably defensible”
interpretation of the statute’s definition of “employer.”
United Nurses, 871 F.3d at 777 (internal quotation marks
omitted). The absence of tribal governments from the
“employer” definition’s list of exclusions, the NLRA’s
silence otherwise as to any exception for the statute’s
application for tribes, and the comparison made in Chapa-De
to otherwise similar employment definitions in various
federal employment statutes that explicitly exclude tribes
from their application all strongly support the Board’s
construction of the NLRA as reaching tribes sufficiently
engaged in interstate commerce.
Casino Pauma, and its amici Fort Peck Assiniboine and
Sioux Tribes, et al., disagree. They maintain that the Board
could not reasonably interpret the NLRA as covering tribes,
16 CASINO PAUMA V. NLRB
for two reasons: because the NLRA generally “draw[s] a
sharp distinction between private and public employers,” and
because the Board has long had a regulation defining a
“State” to include “the District of Columbia and all States,
territories, and possessions of the United States,” 29 C.F.R.
§ 102.1(g), entities as to which, the amici maintain, tribes are
analogous.
Perhaps it would be reasonable to read the NLRA’s
exclusions of many public employers to extend to all public
employers, including tribes, given the law’s focus on private
employment. And perhaps it would be reasonable to view the
NLRA’s silence as to tribes as without import, given the
broad definition the Board has given to the term “State” in the
“employer” definition’s list of exclusions. But those
possibilities do not mean that the Board’s contrary
interpretation of the Act’s silence as to tribes is unreasonable.
Although the Board once found arguments similar to amici’s
persuasive and thus excluded tribes from the NLRA’s reach,
see Fort Apache, 226 N.L.R.B. at 505–06, “a Board rule is
entitled to deference even if it represents a departure from the
Board’s prior policy.” NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 787 (1990); see Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
981–82 (2005). Under these circumstances—in which both
the Board and the parties present reasonable interpretations of
an ambiguous provision in the NLRA—the court must defer
to the Board’s conclusions respecting the meaning of federal
labor law. United Nurses, 871 F.3d at 777 (citing Holly
Farms Corp. v. NLRB, 517 U.S. 392, 398–99 (1996)).
CASINO PAUMA V. NLRB 17
B.
We turn to whether the Board’s approach is unacceptable
as a matter of federal Indian law. We review de novo the
Board’s conclusions as to federal Indian law, as Indian law is
“outside the NLRB’s ‘special expertise.’” NLRB v. Int’l B’hd
of Elec. Workers, Local 48, 345 F.3d 1049, 1054 (9th Cir.
2003); cf. Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137, 143–44 (2002).
Casino Pauma contends that the Board’s reasoning must
be trumped by competing principles of federal Indian
law—principles, it argues, the Board failed fully to consider
in its adoption and application of San Manuel’s tribal
coverage holding. That argument lacks merit.
Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113,
1116 (9th Cir. 1985), established a three-part test for
determining when a federal law of “general applicability”
applies to tribes:
A federal statute of general applicability that
is silent on the issue of applicability to Indian
tribes will not apply to them if: (1) the law
touches ‘exclusive rights of self-governance
in purely intramural matters’; (2) the
application 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. . . .’ In any of these three
situations, Congress must expressly apply a
18 CASINO PAUMA V. NLRB
statute to Indians before we will hold that it
reaches them.
Id. (internal citation omitted).
Applying this test, Coeur d’Alene held that the
Occupational Safety and Health Act (“OSHA”) applied to a
tribe-owned farm located on tribal land, as the tribe had failed
to prove any of the three circumstances that justify excluding
it from OSHA. As to the tribe’s main argument—that OSHA
would interfere with tribal self-government—we observed
that “the tribal self-government exception is designed to
except purely intramural matters such as conditions of tribal
membership, inheritance rules, and domestic relations from
the general rule that otherwise applicable federal statutes
apply to Indian tribes.” Id. And we went on to hold that
“[b]ecause the Farm employs non-Indians as well as Indians,
and because it is in virtually every respect a normal
commercial farming enterprise, . . . its operation free of
federal health and safety regulations is ‘neither profoundly
intramural . . . nor essential to self-government.’” Id.
In the decades that followed, “[w]e have consistently
applied Coeur d’Alene and its progeny to hold that generally
applicable laws may be enforced against tribal enterprises.”
CFPB v. Great Plains Lending, LLC, 846 F.3d 1049, 1053
(9th Cir. 2017); see also Solis v. Matheson, 563 F.3d 425,
429–37 (9th Cir. 2009); United States v. Baker, 63 F.3d 1478,
1484–86 (9th Cir. 1995); Lumber Indus. Pension Fund v.
Warm Springs Forest Products Indus., 939 F.2d 683, 685–86
(9th Cir. 1991). While so doing, we have been particularly
careful to distinguish tribal enterprises from tribal entities
engaging in self-government. See Snyder v. Navajo Nation,
382 F.3d 892, 895–96 (9th Cir. 2004) (holding a tribal law
CASINO PAUMA V. NLRB 19
enforcement agency exempt from the Fair Labor Standards
Act); EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071,
1079–80 (9th Cir. 2001) (holding a tribal housing authority
exempt from the Age Discrimination in Employment Act);
see also United States ex rel. Cain v. Salish Kootenai Coll.,
Inc., 862 F.3d 939, 943 (9th Cir. 2017) (holding that a tribe-
related college may or may not be exempt from the False
Claims Act, depending on further factual development).3
In this case, as in those just discussed, we deal with a law
of general applicability. Chapa-De so recognized, noting that
“the NLRA is not materially different from the statutes that
we have already found to be generally applicable,” and
“conclud[ing] that just as OSHA, ERISA and [the Contraband
Cigarette Trafficking Act] are statutes of general
applicability, so too is the NLRA.” 316 F.3d at 998.
Nor are any of the Coeur d’Alene exceptions here
pertinent. The Pauma Band has no treaty at all with the
federal government, so there can be no treaty violation in
applying the NLRA to the Tribe. As we have discussed, there
is no proof one way or the other that Congress meant to
preclude the NLRA’s application to tribes. And, most
important, the NLRA’s application to a tribe-owned casino
3
We are not alone in our adoption and application of the Coeur
d’Alene factors, although our legal framework is not without its critics.
“[T]he Second, Seventh, Ninth, Eleventh, and now Sixth, Circuits, apply
the Coeur d’Alene framework to determine whether statutes of general
applicability apply to Indian tribes, the Eighth and Tenth Circuits reject it,
and the D.C. Circuit applies a fact-intensive analysis.” Soaring Eagle
Casino & Resort v. NLRB, 791 F.3d 648, 673 (6th Cir. 2015); see Cohen’s
Handbook of Federal Indian Law § 21.02[5][c], p. 1337 (2012) (noting
that courts “frequently invoke” Coeur d’Alene in the labor and
employment context).
20 CASINO PAUMA V. NLRB
such as Casino Pauma does not affect “purely intramural
matters” or the Tribe’s “self-government.” Coeur d’Alene,
751 F.2d at 1116. Casino Pauma is not “the tribal
government, acting in its role as provider of a governmental
service”; rather, “[i]t is . . . simply a business entity that
happens to be run by a tribe or its members.” Karuk Tribe,
260 F.3d at 1080. The labor dispute that gave rise to this case
is not an “intramural” one “between the tribal government
and a member of the Tribe,” id. at 1081, but rather one
between a tribe-owned business and its employees, “[t]he vast
majority” of whom “are not members of any Native
American Tribe.” In this regard, Casino Pauma is much like
the tribe-owned farm in Coeur d’Alene—a business that
“employs non-Indians as well as Indians,” and “is in virtually
every respect a normal commercial . . . enterprise,” such that
“its operation free of federal [labor law] is ‘neither
profoundly intramural . . . nor essential to self-government.’”
751 F.2d at 1116.
In sum, federal Indian law does not preclude the Board’s
application of the NLRA to Casino Pauma.
Not surprisingly, Casino Pauma disagrees with this
conclusion, maintaining that the Coeur d’Alene
Congressional intent prong is flipped in the wrong direction.
Under the sovereign immunity principles outlined in Santa
Clara Pueblo v. Martinez, 436 U.S. 49 (1978), and affirmed
in Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024
(2014), Casino Pauma maintains, generally applicable laws
may be enforced against tribes only if an intent to do so is
clear, rather than if there is no clear intent to the contrary.
Casino Pauma is, of course, correct that “considerations
of Indian sovereignty [serve] as a backdrop against which . . .
CASINO PAUMA V. NLRB 21
applicable federal statute[s] must be read.” Santa Clara
Pueblo, 436 U.S. at 60 (original alterations and quotation
marks omitted). That is why, in both Santa Clara Pueblo and
Bay Mills, the Supreme Court concluded that suits brought by
a private party and a state, respectively, failed in light of
Congress’s silence as to whether those suits were authorized
against tribes. See id. at 59, 70; Bay Mills, 134 S. Ct. at 2039.
Even so, the sovereign immunity cases upon which
Casino Pauma relies do not counsel against the enforcement
of the NLRA here. Those cases focus on disputes between
non-federal parties and tribes and so are not directly relevant.
From the outset, this case, like all other NLRA unfair labor
practice cases, was brought by a federal governmental actor,
the General Counsel of the National Labor Relations
Board—first before the Board, and now for enforcement of
the Board’s order in this court.4 The NLRB General Counsel
4
“Enforcement of the NLRA’s prohibition against unfair labor
practices is accomplished through a split-enforcement system, assigning
all prosecutorial functions to the General Counsel of the NLRB and all
adjudicatory functions to the Board.” Beverly Health & Rehab. Servs. v.
Feinstein, 103 F.3d 151, 152 (D.C. Cir. 1996). “[T]he process of
adjudicating unfair labor practice cases begins with the filing by a private
party of a ‘charge.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138
(1975). The General Counsel reviews and investigates the charge, and
private parties “participate in this investigatory process only to the extent
of furnishing facts . . . and informally presenting their theories.” Higgins,
Jr., The Developing Labor Law at 2858.
“Congress has delegated to the Office of General Counsel . . . the
unreviewable authority to determine whether a complaint shall be
filed. . . . In those cases in which he decides not to issue a complaint, no
proceeding before the Board occurs at all.” Sears, Roebuck & Co.,
421 U.S. at 138–39 (internal quotation marks and citations omitted); see
29 U.S.C. § 153(d). “In those cases in which he decides that a complaint
shall issue, the General Counsel becomes an advocate before the Board in
22 CASINO PAUMA V. NLRB
“seeks enforcement [of the NLRA] as a public agent,” not on
behalf of any private party or private right. Amalgamated
Utility Workers v. Consol. Edison Co. of N.Y., 309 U.S. 261,
269 (1940).
Unlike state governments and private parties, “the United
States may sue Indian tribes and override tribal sovereign
immunity.” United States v. Yakima Tribal Court, 806 F.2d
853, 861 (9th Cir. 1986); see Cohen’s Handbook of Federal
Indian Law § 7.05[1][a], p. 637 (2012) (“Indian nations are
not immune from lawsuits filed against them by the United
States”). “We know of no principle of law (and the Tribe
does not cite any) that differentiates a federal agency . . . from
‘the United States itself’ for the purpose of sovereign
immunity analysis.” Karuk Tribe Housing Auth., 260 F.3d at
1075 (applying “the clear rule” that, like states, “Indian tribes
do not enjoy sovereign immunity against suits brought by the
federal government”). As the NLRB General Counsel brings
suit on behalf of the NLRB, an agency of the United States,
to enforce public rights, the sovereign immunity and
concomitant statutory interpretation considerations applicable
to suits brought against tribes by nonfederal parties, private
and governmental, do not apply.5
support of the complaint.” Id. The General Counsel can dismiss or settle
the unfair labor practice claim without the charging party’s consent. See
Higgins, Jr., The Developing Labor Law at 2859–64. The charging party
may only participate in unfair labor practice hearings as a separate party,
and is not represented by the General Counsel. Scofield, 382 U.S. at
217–21; see 29 C.F.R. §§ 102.1(h), 102.38.
5
Further, although Casino Pauma does not acknowledge it, there is
a conceptual distinction between the procedural question whether tribal
sovereign immunity bars a lawsuit and the substantive question whether
a federal law applies to a tribe. “To say substantive . . . laws apply . . . is
CASINO PAUMA V. NLRB 23
We note, finally, that both of the other circuit courts to
consider the issue have upheld the Board’s determination that
tribe-owned casinos can be NLRA-covered employers. See
San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306,
1308 (D.C. Cir. 2007); NLRB v. Little River Band of Ottawa
Indians Tribal Gov’t, 788 F.3d 537, 555–56 (6th Cir. 2015).
After reviewing our NLRA case law, the statute, and federal
Indian law principles as enunciated in the applicable
precedents, we agree with those Circuits and hold that the
NLRA governs the relationship between Casino Pauma and
its employees.
C.
In a final attempt to limit the NLRA’s application, Casino
Pauma vaguely suggests—and amici California Nations
Indian Gaming Association et al. argue somewhat more
fully—that we must take into account the labor provisions of
Casino Pauma’s compact with California under the Indian
Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2710(d). See
In re Indian Gaming Related Cases, 331 F.3d 1094,
1095–1106 (9th Cir. 2003); Pauma Band of Luiseno Mission
Indians of Pauma & Yuima Reservation v. California,
813 F.3d 1155, 1159–63 (9th Cir. 2015). Amici contend, in
particular, that IGRA’s provisions, as implemented through
a California-Tribe compact providing for a labor dispute
resolution mechanism, are “in direct conflict with many
provisions of the NLRA.”
not to say that a tribe no longer enjoys immunity from suit. . . . There is
a difference between the right to demand compliance with . . . laws and
the means available to enforce them.” Kiowa Tribe of Okla. v. Mfg.
Techs., Inc., 523 U.S. 751, 755 (1998).
24 CASINO PAUMA V. NLRB
We have not uncovered any conflict between the NLRA
and IGRA. Under IGRA, a certain class of gaming, including
that class historically offered at Casino Pauma, see Pauma
Band, 813 F.3d at 1160–62, is “lawful on Native American
lands only if such activities are conducted pursuant to a
Tribal-State Compact entered into by the tribe and a state that
permits such gaming, and the Compact is approved by the
Secretary of the Interior,” id. at 1160; see 25 U.S.C.
§ 2710(d). IGRA provides in relevant part that “[a]ny Tribal-
State compact . . . may include provisions relating to . . . the
application of the criminal and civil laws and regulations of
the Indian tribe or the State that are directly related to, and
necessary for, the licensing and regulation of such activity.”
25 U.S.C. § 2710(d)(3)(C). Through this compact system,
IGRA constitutes “an example of ‘cooperative federalism’ in
that it seeks to balance the competing sovereign interests of
the federal government, state governments, and Indian tribes,
by giving each a role in the regulatory scheme.” Artichoke
Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 715 (9th
Cir. 2003) (internal quotation marks omitted).
At the same time, IGRA “does not . . . immunize the
operation of Indian commercial gaming enterprises from the
application of other generally applicable congressional
statutes.” NLRB v. Little River Band of Ottawa Indians
Tribal Gov’t, 788 F.3d 537, 553 (6th Cir. 2015). There is no
IGRA provision stating an intent to displace the NLRA—or
any other federal labor or employment law, for that matter.
IGRA’s general allowance that state-tribe compacts “may
include provisions relating to . . . the application of . . . civil
laws” in no way signifies that compacts must include certain
state labor law provisions—or that, if the compacts do, those
provisions trump otherwise applicable federal laws.
25 U.S.C. § 2710(d)(3)(C). As the D.C. Circuit put the
CASINO PAUMA V. NLRB 25
matter, “IGRA certainly permits tribes and states to regulate
gaming activities, but it is a considerable leap from that bare
fact to the conclusion that Congress intended federal agencies
to have no role in regulating employment issues that arise in
the context of tribal gaming.” San Manuel Indian Bingo &
Casino v. NLRB, 475 F.3d 1306, 1318 (D.C. Cir. 2007);
accord Little River, 788 F.3d at 553–54.
We conclude that Casino Pauma’s compact with
California does not displace the application of the NLRA to
its activities.6
IV.
On the merits of the unfair labor charge complaint, the
Board held that Casino Pauma violated section 8(a)(1) of the
NLRA by disciplining an employee “for distributing Union
literature [i]n a non-working area during non-working time;”
“[b]y maintaining and enforcing a rule in its employee
handbook prohibiting the distribution of literature in ‘guest
areas;’ by interfering with the distribution of Union literature
by employees in these areas, including the public or guest
entrances to its casino; by threatening to discipline employees
who distributed Union literature in these areas; and by
6
For similar reasons, we reject Casino Pauma’s request to stay the
Board’s petition for enforcement and its petition for review pending
resolution of a contract case it filed against the Union, Pauma Band of
Luiseno Mission Indians of Pauma & Yuima Reservation v. UNITE HERE,
No. 16-02660 (S.D. Cal.). Casino Pauma argues that the district court in
that case will be presented with more relevant evidence concerning the
relationship between the NLRA and the California-Tribe compact made
pursuant to IGRA. There is no need for, and no precedent supporting,
staying these petitions for review and enforcement pending resolution of
a district court case against the Union concerning IGRA.
26 CASINO PAUMA V. NLRB
photographing employees who distributed Union literature in
these areas.” See 29 U.S.C. § 158(a)(1). The Board ordered
Casino Pauma to take a variety of actions to remedy these
NLRA violations.
A.
First, some procedure. Under section 10(e) of the NLRA,
we have jurisdiction only to consider arguments raised before
the NLRB “absen[t] . . . ‘extraordinary circumstances.’”
NLRB v. Legacy Health Sys., 662 F.3d 1124, 1126 (9th Cir.
2011) (quoting 29 U.S.C. § 160(e)). “The purpose of this
provision is to ensure that the Board is given the opportunity
to bring its expertise to bear on the issue presented so that we
may have the benefit of the Board’s analysis when reviewing
the administrative determination.” NLRB v. Int’l Bhd. of
Elec. Workers, Local 952, 758 F.2d 436, 439 (9th Cir. 1985).
The Board and Union argue that Casino Pauma did not
exhaust before the Board the principal merits argument it
makes before us—that, under Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), Casino Pauma did not violate
NLRA section 8(a)(1) by preventing employees from
distributing union literature to customers in front of the
casino. We hold that there is no exhaustion bar to our
consideration of the Casino’s main Republic Aviation
argument.
Casino Pauma’s exceptions to the ALJ’s order were
indeed quite general. But the General Counsel sufficiently
understood Casino Pauma to be making an argument
concerning the proper scope of Republic Aviation as applied
to literature distribution rights outside casinos to make a
specific counter-argument on that issue in its brief to the
CASINO PAUMA V. NLRB 27
Board. And the Board also got the gist of the argument: it
approved the ALJ’s holding that, in light of Republic
Aviation, “It is by now well-settled that employees are
allowed, absent unusual or special circumstances, to
distribute union literature on their employer’s premises
during nonwork time in nonwork areas.” See also Concurring
Opn. of Member Miscimarra (noting his “agree[ment] with
the judge and his colleagues that the Respondent violated Sec.
8(a)(1) by maintaining a rule prohibiting employees from
distributing literature in ‘guest areas,’” but noting that he
“would not find, in every case, that the area immediately
outside a hotel entrance is a non-work area”).
“Ordinarily, when an agency has actually addressed an
issue, the policies underlying the exhaustion doctrine . . . are
satisfied.” W. Radio Servs. Co. v. Qwest Corp., 530 F.3d
1186, 1203 (9th Cir. 2008) (citing Abebe v. Gonzales,
432 F.3d 1037, 1041 (9th Cir. 2005) (en banc)). So here: the
NLRB’s consideration of the issue was sufficient for purposes
of exhaustion, and this panel has jurisdiction to consider the
merits.
B.
Section 7 of the NLRA establishes, as relevant here,
employees’ “right to self-organization, to form, join, or assist
labor organizations . . . , and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection . . . .” 29 U.S.C.§ 157; see also
29 U.S.C.§ 158(a)(1). Casino Pauma’s central merits
contention is that the Board misapplied the NLRA in
determining that its employees had a section 7 right to
distribute union literature to patrons on the front driveway of
its casino.
28 CASINO PAUMA V. NLRB
Under well-established law, this contention about the
reach of NLRA section 7’s protection gives rise to two
questions. “The first is whether, apart from the location of
the activity, [literature] distribution” to consumers “is the
kind of concerted activity that is protected from employer
interference by §§ 7 and 8(a)(1) of the National Labor
Relations Act.” Eastex, Inc. v. NLRB, 437 U.S. 556, 563
(1978). The second is “whether the fact that the activity takes
place on petitioner’s property gives rise to a countervailing
interest that outweighs the exercise of § 7 rights in that
location.” Id.
The answer to the first question is evident. Section 7 has
long been understood to protect as concerted activity appeals
to the public for support of employees’ workplace
controversies. “Section 7 protects the right of employees ‘to
improve terms and conditions of employment . . . through
channels outside the immediate employee-employer
relationship.’” Glendale Assocs., Ltd. v. NLRB, 347 F.3d
1145, 1153 (9th Cir. 2003) (quoting Eastex, 437 U.S. at 565).
Employees thus have an “undisputed right to make third party
appeals in pursuit of better working conditions,” Sierra
Publ’g Co. v. NLRB, 889 F.2d 210, 217 (9th Cir. 1989)
(discussing NLRB v. Local Union No. 1229 (Jefferson
Standard), 346 U.S. 464 (1953), and its progeny), including
the right to engage in “picketing and handbilling truthfully to
inform customers” about an employer’s labor practices,
NLRB v. Calkins, 187 F.3d 1080, 1089 (9th Cir. 1999).
The second question, concerning the import of the
employees’ location while distributing literature, is only
slightly less straightforward. We start with the principle that
the NLRA “left to the Board the work of applying the Act’s
general prohibitory language in the light of the infinite
CASINO PAUMA V. NLRB 29
combinations of events which might be charged as violative
of its terms.” Republic Aviation, 324 U.S. at 798. So, in
reviewing solicitation and distribution rules established by the
Board, “[t]he judicial role is narrow: The rule which the
Board adopts is judicially reviewable for consistency with the
Act, and for rationality, but if it satisfies those criteria, the
Board’s application of the rule, if supported by substantial
evidence on the record as a whole, must be enforced.” Beth
Israel Hosp. v. NLRB, 437 U.S. 483, 501 (1978) (footnote
omitted).
Republic Aviation approved a Board baseline rule for the
location of workplace union solicitation and literature
distribution protected by section 7:
Since “working time is for work,” a rule
prohibiting employee solicitation and
distribution of literature during work time is
presumed to be valid. On the other hand, “the
time outside (work), whether before or after
work, or during luncheon or rest periods, is an
employee’s time to use as he wishes without
unreasonable restraint,” even though he is on
company property. Therefore, a rule
prohibiting employee solicitation or
distribution of literature during nonworking
time in nonwork areas is presumptively
invalid unless special circumstances warrant
the adoption of the rule.
NLRB v. Silver Spur Casino, 623 F.2d 571, 582 (9th Cir.
1980) (summarizing Republic Aviation, 324 U.S. at 803
n.10).
30 CASINO PAUMA V. NLRB
Republic Aviation, and much of its progeny, concerned
employee solicitation of and literature distribution to fellow
employees. Here, the leafleting occurred in areas frequented
by casino customers and was directed at those customers.
But, as the D.C. Circuit has noted, “neither [the] court[s] nor
the Board ha[ve] ever drawn a substantive distinction
between solicitation of fellow employees and solicitation of
nonemployees.” Stanford Hosp. & Clinics v. NLRB, 325 F.3d
334, 343 (D.C. Cir. 2003); accord New York-New York, LLC
v. NLRB, 676 F.3d 193, 196–97 (D.C. Cir. 2012). Nor is
there any basis for such a distinction: the balancing of
interests accomplished in Republic Aviation accounts for an
employer’s “property right . . . in preventing employees from
bringing literature onto its property and distributing it
there—not in choosing which distributions protected by § 7
it wishes to suppress.” Eastex, 437 U.S. at 573 (footnote
omitted).7
We cannot identify, and the parties have not raised, any
reason to require the Board to treat section 7 protected
solicitation differently with regard to location or timing based
on the intended audience. The rationales for Republic
Aviation’s principle—that “[t]he freedom to communicate is
essential to the effective exercise of organizational rights,”
and that “the time outside (work), . . . is an employee’s time
7
By contrast, non-employee union organizers may be excluded from
soliciting employees on an employer’s property under the separate rule
established in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and
applied in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). That rule
“[s]trike[s] a balance between § 7 organizational rights and an employer’s
right to keep strangers from entering on its property,” while, under
Republic Aviation, “[a] wholly different balance [is] struck when the
organizational activity [is] carried on by employees already rightfully on
the employer’s property.” Eastex, 437 U.S. at 571–72.
CASINO PAUMA V. NLRB 31
to use as he wishes without unreasonable restraint, even
though he is on company property,” Silver Spur, 623 F.2d at
581–82—apply to solicitation of customers as well as to
solicitation of fellow employees. And the employment site
“is a particularly appropriate place for the distribution of § 7
material,” Eastex, 437 U.S. at 574, as to both employees and
customers; for both audiences, the employment site is the
most convenient and logical place to encounter the intended
audience and to discuss labor matters.
We conclude that the Board properly interpreted Republic
Aviation’s holding concerning section 7 to reach employees’
customer-directed union literature distribution on non-work
time in non-work areas of the employer’s property.
As to the particular application of Republic Aviation here,
the Board reasonably applied to Casino Pauma its literature
distribution rules concerning casinos. “The Board has special
rules to determine what constitutes a working area for each
industry. In a retail store, for example, the working area is
the selling floor where the employer makes retail sales, but
not the other public spaces.” New York-New York, 676 F.3d
at 197 (internal citations omitted). In hotels and casinos, “the
Board has long concluded that the working areas are the hotel
rooms and gaming areas because a hotel-casino’s main
function is to lodge people and permit them to gamble.” Id.
(internal citations and quotation marks omitted).
A trio of Board cases were the source of the delineation
summarized in New York-New York: Dunes Hotel,
284 N.L.R.B. 871 (1987), Flamingo Hilton-Laughlin,
330 N.L.R.B. 287 (1999), and Santa Fe Hotel, Inc.,
331 N.L.R.B. 723 (2000). Those cases reasoned that
entrances to hotels and casinos, along with certain other
32 CASINO PAUMA V. NLRB
“guest” areas incidental to the businesses’ main operations,
are non-work areas in which non-working employees may
distribute literature to guests and other non-employees.
The case most closely on point is Santa Fe Hotel. There,
the Board concluded that because “the main function of the
Respondent’s hotel-casino is to lodge people and permit them
to gamble,” “[t]he ‘work activity’ . . . at the hand-billed
entrances outside its hotel-casino—including security,
maintenance, and gardening—is incidental to this main
function. To hold that this is a work area (where handbilling
cannot occur) would . . . effectively destroy the right of
employees to distribute literature.” Santa Fe Hotel,
331 N.L.R.B. at 723 (internal quotation marks and footnote
omitted).
Applying those cases to Casino Pauma, the ALJ
determined, and the Board agreed, that “the valet driveway
leading to the public entrance to the Respondent’s casino was
a non-working area.” Because Casino Pauma’s main function
is to provide space for its patrons to gamble, space near its
front driveway and entrance is “incidental to this main
function.” Id. Addressing nearly identical facts, the D.C.
Circuit approved the Santa Fe Hotel holding concerning
leafleting of customers at the front driveway and entrance to
a hotel, “[i]n light of . . . the deference we owe to the Board
on a question of this kind.” New York-New York, 676 F.3d at
197.
Casino Pauma nonetheless maintains that we should
disapprove the Board’s cases concerning which areas of
hotels and casinos are non-work spaces for purposes of
Republic Aviation. But, again, “it is the Board upon whom
the duty falls in the first instance to determine the relative
CASINO PAUMA V. NLRB 33
strength of the conflicting interests and to balance their
weight.” Beth Israel, 437 U.S. at 504. Casino Pauma does
not point to any evidence in the record suggesting that the
Board’s standards inappropriately balance employees’ section
7 rights against the employer’s interests in managing its
business, or preclude the employer from assuring its
customers’ safety and freedom from harassment.
Additionally, in a variant of its Indian law-based
jurisdictional argument, Casino Pauma suggests that its
sovereign interests as a tribe include a sovereign right to
exclude non-Indians from its property that transcends the
property rights of other employers, and should have been
factored into the Board’s Republic Aviation analysis. This
suggestion misconceives the nature of the right actually at
issue in this variety of case. “Here, as in Republic Aviation,
petitioner’s employees are ‘already rightfully on the
employer’s property,’ so that in the context of this case it is
the ‘employer’s management interests rather than [its]
property interests’ that primarily are implicated.” Eastex,
437 U.S. at 573 (quoting Hudgens v. NLRB, 424 U.S. 507,
521 n.10 (1976)). As a proprietor of a commercial enterprise,
the Tribe’s management interests do not differ from those of
other employers; we so concluded in applying the Couer
d’Alene standards to Casino Pauma.
Finally, and most ambitiously, Casino Pauma argues that
the Board should reconsider its application of Republic
Aviation, and perhaps Republic Aviation itself, in light of its
employees’ alternative, easier means of distributing union
literature using modern tools of communication such as social
media. But, pursuant to another long-established
interpretation of the NLRA we have already discussed, see
n.7, “inquiry into such considerations [of alternative forms of
34 CASINO PAUMA V. NLRB
communication] is made only when nonemployees are on the
employer’s property.” ITT Indus., Inc. v. NLRB, 413 F.3d 64,
76 (D.C. Cir. 2005) (internal quotation marks and citations
omitted); see Babcock & Wilcox, 351 U.S. at 113. We have
no reason to require the Board to abandon this long-
established, reasonable premise, long ago approved by the
Supreme Court. Again, the Republic Aviation rule is
grounded in the recognition that employers have little interest
in requiring employees legitimately on the premises and not
working to advance their organizational interests somewhere
else.
As to Casino Pauma’s valet driveway, each of the Board’s
holdings involved a reasonable application of its literature
distribution jurisprudence to facts supported by substantial
evidence here: Casino Pauma’s literature distribution rule in
its handbook was applied to prevent literature distribution in
the non-working area of the casino’s valet entrance, and thus
violated section 8(a)(1);8 Casino Pauma’s prevention of non-
working employees from handing out union literature at the
entrance violated section 8(a)(1); and its employees’
photographing of others handing out union literature
8
The Board found that Casino Pauma’s literature distribution rule
violated section 8(a)(1) for two alternative reasons: “employees would
reasonably construe the rule to restrict Section 7 activity,” and “because
the rule was in fact applied to restrict the lawful exercise of Section 7
rights.” After this case was argued, the Board revised its test as to when
employee handbook rules violate section 8(a)(1) and abandoned the
“reasonably construe” standard it applied in this case. See Boeing Co.,
365 N.L.R.B. No. 154, 1–5 (2017). Here, however, Casino Pauma’s
literature distribution rule was actually applied to restrict section 7 rights.
The Board’s order that Casino Pauma “[c]ease and desist from . . .
[m]aintaining a rule that prohibits employees from distributing literature
in ‘guest areas’” is therefore enforceable without consideration of the
Board’s alternative, “reasonably construed” rationale.
CASINO PAUMA V. NLRB 35
constituted inappropriate surveillance and violated section
8(a)(1).
The Board’s holding that Casino Pauma violated sections
8(a)(1) and 8(a)(3) by disciplining an employee because she
distributed union literature near the casino’s time clock was
also reasonable. The employee was on a break, and did not
interfere with other employees’ working time or working
space. The “employees who received the flyers clocked out
within 30 seconds or so,” and were located “immediately
outside the employee break room/cafeteria, in an area
removed from the gaming areas or other places that
customers or clients have access to.” Under these
circumstances, the Board reasonably found that Casino
Pauma violated the employee’s right to distribute union
literature in non-working spaces at a non-working time.
In short, the Board’s conclusion that Casino Pauma
violated its employees’ NLRA right to distribute union
literature was adequately supported, both by the applicable
legal principles and the record. We therefore enforce the
Board’s order.
V.
We GRANT the National Labor Relations Board’s
petition for enforcement and DENY Casino Pauma’s petition
for review.