Casino Pauma v. National Labor Relations Board

For over seventy years, the National Labor Relations Act, 29 U.S.C. § 151 et seq., was interpreted as not applying to Indian tribes according to administrative regulation and decisions. During this time, Congress enacted the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., thereby authorizing the State of California and the owner of the Petitioner – the Pauma Band of Mission Indians – to execute a compact that incorporates the core protections of the NLRA but directs any resultant unfair labor practice charges into an “exclusive” and “binding” arbitration process. Despite this IGRA-based arbitral “substitute,” the National Labor Relations Board exerted jurisdiction over the unfair labor practice charges below using a new interpretation of the NLRA that presumes the statute is generally applicable, narrowly construes the exceptions, and equates silence as to Indian tribes with Congressional assent. It then rewrote the rule in Republic Aviation Corporation v. NLRB, 324 U.S. 793 (1945), that allows employees to discuss unionization with other employees in “non-work” areas of a workplace to permit employees to solicit customers in any “guest” areas inside the facility – like restrooms and restaurants. Writing for the Ninth Circuit, Judge Berzon affirmed in full, deferring to the Board’s latest interpretation of the NLRA under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), despite Casino Pauma offering an admittedly reasonable counter-interpretation. The questions presented are: 1. Should this Court reconsider Chevron?