MASHANTUCKET, Conn. – The Mashantucket Pequot Tribal Nation is facing a déjà vu jurisdictional dispute over whether tribal law or federal labor regulations apply to employees on sovereign tribal land.

United Food and Commercial Workers Local 371 petitioned the National Labor Relations Board in June for an election to unionize around 375 beverage employees at Foxwoods Resort Casino. The board has scheduled an election July 31 at the casino.

Mashantucket Pequot Tribal Council Chairman Rodney Butler said the union decision to file the petition at the NLRB rather than with the tribe is an attack on the nation’s sovereignty.

“As we have repeatedly noted, it is the longstanding policy of the United States to encourage and support tribal self-governance. The Mashantucket Pequot Labor Relations Law provides a fair process for employees to select union representation if they so desire.”

Local 371 President Brian Petronella said the union would be willing to negotiate a contract under tribal law if they win the election.

This may be the beginning of a cycle the nation has already experienced. In late 2007, table dealers voted 1,289-852 in an NLRB election to join the United Auto Workers. The election launched two years of allegations, complaints, hearings, counter-complaints and other actions that seemed destined to land in the U.S. court system as tribal leaders vowed to take the fight all the way to the U.S. Supreme Court. But, in the end, the nation and employees negotiated a contract under tribal law.

“Foxwoods and the UAW have negotiated a contract under tribal law covering the casino’s 2,500 dealers,” Butler said. “The tribe’s firefighters are in the midst of good faith contract negotiations pursuant to tribal law. We continue to believe that tribal law should apply in these matters. We will continue to vigorously oppose any further attempts to undermine our sovereignty.”

Jonathan B. Kreisberg, the NLRB’s regional director, ordered the secret ballot election following a review of a June 25 hearing and briefs submitted for the case.

Foxwoods said it would appeal the NLRB ruling.

“While we are disappointed and disagree with the decision we are not surprised given the (NLRB’s) previous statements and position on this issue,” Foxwoods said in a statement.

Petronella said the nation’s appeal is not unexpected based on the past experience with the table dealers.

“They (the nation’s representatives) have until July 21 to file an appeal with the Washington office (of the NLRB). Just prior to the election, Washington will rule in our favor and we’ll have the election and if we win, they’ll file objections to the elections. We’ll go through the process. We’ll get certified by Washington and they’ll have the right to go to the court of appeals,” Petronella said.

But one thing is different this time. The union is stating up front that it is willing to follow the negotiating model set by the table dealers and the UAW.

“I said if we win the election under the NLRB, we’ll negotiate a contract under tribal law, but we’re not going to give up our right to have an election under NLRB,” Petronella said.

That “right” is by no means certain as it has not been tested by an en banc appeals court or in the U.S. Supreme Court. The NLRB claimed jurisdiction in the 2007 UAW vote based on a circuit court’s 2-1 panel decision in January 2007 that upheld the NLRB’s own earlier ruling that the San Manuel Band of Mission Indians in California was an employer under federal labor law.

Complex unanswered questions remain in the federal versus tribal jurisdiction argument regarding aspects of tribal sovereignty such as tribal immunity, Indian preference laws, and employee rights codes under tribal law.

Petronella said his union was the first to hold an election under tribal law last year “and we lost that election, but it was just because of the way the ballots were counted – about 60 people who didn’t vote were counted as ‘no’ votes. So, after that we said we don’t want to go through tribal law again – majority rules, we want an NLRB election. So we filed a petition and at the 11th hour – 12 hours, actually from the NLRB hearing – they changed the law to be majority votes instead of the old rules,” Petronella said.

The Mashantucket Pequot Tribal Council said that circumstances surrounding a recent election by the International Union of Operating Engineers provided an opportunity to reassess the standard applied in union elections.

In May 2010, the Mashantucket Employment Rights Office held a union election for the Foxwoods engineering employees. The employees cast 128 yes votes and 123 no votes out of 263 eligible voters. Because the vote was four votes short of a majority of the total eligible voters, the union was not formed, the council said.

The council subsequently amended the Mashantucket Pequot Labor Relations Law to provide that a union is to be certified as an exclusive bargaining representative if a majority of the employees voting in a valid election vote in favor of union representation.

“The tribe firmly believes that the ‘majority of unit’ standard applied previously is a fair standard,” said Jackson King, the tribe’s general counsel. “But having looked into the issue after the most recent MERO election, we came to recognize that the labor statutes of other tribal nations, as well as the public employment labor statutes of most states and municipalities, apply the ‘majority of votes cast’ standard the tribe has now adopted. Given the history of extremely high participation in MERO elections to date, the tribe believes the ‘majority of votes cast’ standard is also a fair standard.”

The previous rules were not unique to the tribal nation.

“It followed the old railroad and airlines rules which said those who don’t vote would be counted as no votes,” Petronella said.

In May, the National Mediation Board adopted a new rule to provide that a majority of votes cast will determine the outcome of an election.