|By Fred O. Williams, The Buffalo News, N.Y.|
Knight Ridder/Tribune Business News
Dec. 7, 2004 - The card dealer heard about the unusual working conditions before he started his job at the Seneca Niagara Casino in Niagara Falls.
At the tribe-owned enterprise, Senecas are entitled to more holidays than other workers. They also get preference when promotions are being handed out. And they received a half-day off on election day, while non-Indians worked.
"We knew when we started it was not an equal opportunity employer," said the dealer, a non-Indian who spoke on condition of anonymity. "We have people in supervision who have never touched a deck of cards."
The preferences for Indians are legal because tribal enterprises are exempt from U.S. discrimination law, experts said. The special treatment for Seneca members is documented in the employee handbook -- both at the Niagara Falls casino and its sister facility, the Seneca Allegany Casino in Salamanca.
But at casinos that employ hundreds of non-Indians, the special treatment is causing friction. That and other gripes are fueling a union drive at the Niagara Falls casino, testing the limits of the tribal enterprise's autonomy.
Dealers, most of whom are non-Senecas, have petitioned for a vote to join the Teamsters union. "We just want to be treated fairly, and we're not," said the dealer, a supporter of the union drive. A hearing is scheduled Friday at the National Labor Relations Board in Buffalo.
Managers and lawyers for the Seneca Niagara Casino wouldn't comment.
A union contract could address preferential treatment and other concerns of casino workers that are not governed by employment law, Teamsters officials said.
The preferences have created a sharp split in the work force of the casino, with mostly non-Indian card dealers on the lower rungs and Senecas predominant in supervisory roles, two dealers who support the union said.
Of the 430 dealers in the proposed Teamster unit, fewer than 50 are Senecas, dealers and union organizers estimated. Pay for the entry-level casino jobs starts at less than $5 an hour, but tips usually add $10 an hour, workers said.
The union campaign comes as the growth of tribal businesses, with about 350 Indian casinos nationally, puts a spotlight on their legal status. In May, the federal labor board overturned its earlier rulings to allow a union vote at the San Manuel Indian casino in California, citing the growth of Indian-owned businesses.
Casinos are operating as full-fledged businesses in the mainstream of U.S. commerce, calling into question their exemption from laws governing similar establishments, the board said. The ruling cited tribal enterprises as large employers of non-Indians which cater to many non-Indian customers.
Whether card dealers in Niagara Falls will vote on union representation isn't certain. The labor board only recently allowed a union election in an Indian casino, and the new precedent has yet to be tested in federal courts.
"It's certainly not a settled area of law," said Mark Van Norman, executive director of the National Indian Gaming Association.
When it comes to casinos, the boundary between tribal autonomy and workers' rights is blurry.
The U.S. Equal Employment Opportunity Commission said that anti-discrimination law doesn't extend to Indian casinos.
"We have no jurisdiction -- that's a sovereign nation," said Elizabeth Cadle, director of the commission's Buffalo office. If it received a complaint from a casino worker, the office would dismiss it because of the lack of jurisdiction, she said.
But the minimum wage, overtime and workplace safety standards do apply, a spokesman for the federal Labor Department said.
"Tribal enterprises are sovereign only to the extent they are engaged in traditional tribal activities," said John M. Chavez, a spokesman for the U.S. Labor Department. "Gambling is not one of those."
Because they earn substantial tips, casino dealers may be paid less than the federal $5.15 minimum wage.
The Western New York casinos aren't the only ones with preferences that favor Indians. Since tribal enterprises exist to promote the economic welfare of their people, many Indian casinos have policies designed to advance their members, said Van Norman of the Indian gaming association.
"The idea of employing Indians on Indian land goes back a long way," he said.
As for labor rights, a few Indian casinos are unionized, under agreements between the tribe and union, he said. Such arrangements bypass the federal labor board and the question of its jurisdiction.
That the labor board would reverse itself and assert jurisdiction because of the growth of Indian casinos smacks of penalizing the ventures for their success, Van Norman said. "The attitude is 'we don't need to worry about Indian (enterprises) unless they have some kind of revenues.'-- "
Union supporters at Seneca Niagara Casino said issues other than preferences contributed to their campaign. Dealers said they also seek improvements in sick leave policies and a hike in pay, which is less than dealers in nearby Canadian casinos make.
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