Casino Pauma, an Enterprise of the Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation, a federally recognized Indian Tribe, Petitioner,
National Labor RelationsBoard, Respondent, Unite Here International Union, Intervenor. National Labor RelationsBoard, Petitioner,
Casino Pauma, an Enterprise of the Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation, a federally recognized Indian Tribe, Respondent.
and Submitted November 9, 2017
Petition for Review of an Order of the National Labor
Relations Board No. 21-CA-125450
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.
Dreeben, Deputy Associate General Counsel; John H. Ferguson,
Associate General Counsel; Jennifer Abruzzo, 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
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.
Before: Richard Linn, [*] Marsha S. Berzon, and Paul J.
Watford, Circuit Judges.
Law / Tribal Law
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
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
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 with California did not displace the
application of the NLRA to its activities.
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.
BERZON, Circuit Judge:
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
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.
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."
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.
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.
General Counsel of the NLRB filed several complaints
concerning the literature distribution
incidents.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 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).
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.
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).
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 addressing this
argument, we consider whether Casino Pauma is precluded from
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.
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. 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).
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.
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.
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.
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.
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 ...