Court tells tribe to stay out of NGS labor case
By Bill Donovan
Special to the Times
WINDOW ROCK, April 5, 2012
A three-judge panel of the 9th Circuit Court of Appeals, in a ruling last week, said the tribe has no place in a case involving two tribal members who claim they were fired "without just cause" from the Navajo Generating station in Page, Ariz.
Dispute over the tribe's right to be involved in decisions surround the plant began in 1969, when the tribe leased the land to the plant, which is owned by six utilities and operated by the Salt River Project.
In that lease, the tribe agreed not to "directly or indirectly regulate or attempt to regulate the ... construction, maintenance or operation" of the plant.
The question since then is whether the Navajo Nation can get involved in any decision by the plant that affects its members, since the Navajo Preference in Employment Act governs how companies treat Navajos in their employ.
The Navajo Nation Supreme Court has upheld the authority of the tribe to enforce Navajo preference laws at the plant, but SRP contends that the language in the lease "extinguished all Indian uses of the covered lands."
The dispute over the fired employees began more than seven years ago when the Office of Navajo Labor Relations agreed to hear their complaints, despite an objection from SRP.
David Jordan, the Gallup attorney who represents the two employees, said the tribe's position is correct. While the 1969 lease prohibits the tribe from regulating the technical operation of the plant, it does not proscribe it from acting when injustices have been committed against tribal members, he said.
In such cases, the tribal position is that the tribe and the Office of Navajo Labor Relations have a right to step in and make sure that tribal members are treated fairly.
Another major facet of the controversy, said Jordan, is the question of what jurisdiction federal courts have over interpretation of Navajo law.
He pointed out that the Navajo Nation Supreme Court, with its understanding of tribal law and customs, ruled that the tribe does have the right to impose its preference laws on companies like NGS that employ Navajo workers.
"I believe that the federal system does not have the right to tell the Navajo courts what Navajo laws mean or ought to mean," Jordan said.
The latest Appeals Court decision against the tribe's involvement kicks the workers' case back to District Court, but it's not over yet, Jordan said.
He plans to seek an en banc hearing - by the full 11-member court.
Jordan noted that all of the issues that have been litigated so far have been procedural ones, and the federal district court has yet to hold a hearing on the merits of his clients' claim.
"If that happens, I am confident we will win," he said.
Jordan said his clients still call regularly to find out what's going on with their case, adding that this case goes beyond the two people who were fired.
"Until we win, Navajo employees at the plant have no Navajo preference rights," he said, adding that he and the tribal attorneys all feel it is important to keep fighting.
Disputes with the Navajo Generating Station have had a major effect on Navajo employment on the reservation, beginning when former Chairman Peter MacDonald Sr. took office and began questioning Salt River Project on why it wasn't hiring Navajos at the plant.
Plant officials said the reason was simple - they only hired union workers and there were no qualified Navajos who were also members of the union.
As a result, Jordan said, MacDonald got hold of Tom Boise, a labor rights expert, and had him work out a plan with the AFL-CIO to get more Navajos trained and unionized. Both the International Brotherhood of Electrical Workers and the International Brotherhood of Boilermakers represent workers at NGS.
MacDonald promised that he would secure a few million dollars in federal grants and create what is now Navajo Technical College in Crownpoint if the AFL-CIO would accept its graduates into union membership. The AFL-CIO agreed and began what turned out to be a powerful partnership.
The tribe's relationship with Boise also led to the establishment of the Office of Navajo Labor Relations to oversee workers' rights, with Boise as its first director, a position he held for several years.