Large-scale unionism was born as a result of the federal National Labor Relations Act of 1935 (NLRA), and for the most part, union activities are still governed by the NLRA, through its enforcing agency, the National Labor Relations Board (NLRB). A number of states have their own “union” laws as well, designed to address issues and/or employees not covered by the federal law, but the NLRA preempts state laws except in the public sector. The NLRA requires management to recognize unions that represent a majority of their employees.
For an employer to be governed by the NLRA, the employer must be involved in interstate commerce and meet a threshold for business volume. For purposes of the NLRA, interstate commerce has a very broad definition and is not limited to finished products shipped over state lines. Instead, interstate commerce includes anything that crosses state lines and is used in making, selling, or advertising the employer's product (e.g., raw materials, utility power, computers/telephones). Generally, a business that is involved in interstate commerce is covered by the NLRA if it meets any of the following thresholds:
• Retail concerns that have a $500,000 gross volume per year
• Nonretail businesses with direct or indirect inflow of goods from out of state or outflow of goods to other states of at least a gross volume of $50,000 per year
Indian casinos. Two federal appellate courts have held that the NLRA applies to an Indian tribe operating a casino (San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007); NLRB v. Little River Band of Ottawa Indians Tribal Gov't, 788 F.3d 537 (6th Cir. 2015)). The courts observed that operating a casino is a commercial ...