Yukon Kuskokwim Health Corporation

National Labor Relations Board - Board Decisions

May 28, 2004

341 N.L.R.B. 1075 (N.L.R.B. 2004)

YUKON KUSKOKWIM HEALTH CORP. 1075
Yukon Kuskokwim Health Corporation and Interna-
tional Brotherhood of Teamsters, Local 959,
AFL–CIO, CLC. Case 19–CA–26663
May 28, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, AND WALSH
On October 29, 1999, the National Labor Relations
Board issued a Decision and Order in the above-
captioned proceeding1 finding that Yukon Kuskokwim
Health Corporation (the Respondent) had engaged in and
was engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act), and ordering the Respondent to cease
and desist and take certain affirmative action to remedy
such unfair labor practices, including, on request, bar-
gaining with the Charging Party, International Brother-
hood of Teamsters, Local 959, AFL–CIO, CLC (the Un-
ion).
Thereafter, the Respondent filed a petition with the
United States Court of Appeals for the District of Co-
lumbia Circuit for review, and the Board filed a cross-
application for enforcement of its Order. On December
19, 2000, the court denied enforcement of the Board’s
Order,2 and remanded the case to the Board for further
consideration of the Respondent’s argument that it is
entitled to exemption under Section 2(2) of the Act be-
cause the Indian Self-Determination Act (ISDA), 25
U.S.C. § 450, et seq., authorizes it to act as an arm of,
and thus to share in the exemption of, the United States.
The court instructed the Board to consider what allow-
ance, if any, the Act must make in order to accommodate
Federal Indian law, as reflected in the ISDA.
On March 20, 2001, the Board advised the parties that
it had decided to accept the court’s remand, and invited
them to file statements of position with respect to the
issues raised by the court’s remand. The General Coun-
sel, the Respondent, and amici curiae3 filed statements of
position addressing the merits of the case in light of the

1 329 NLRB No. 86 (not reported in Board volumes). Previously,
the Board issued a Decision and Order finding that the Board had juris-
diction over the Respondent and, therefore, that the Regional Director’s
decision to conduct an election was appropriate. 328 NLRB 761
(1999). The Union subsequently won the election. The Respondent’s
refusal to recognize and bargain with the Union gave rise to the com-
plaint that is the subject of the 1999 and the instant decisions.
2 234 F.3d 714.
3 The Alaska Native Health Board, Bristol Bay Area Health Corpo-
ration, Norton Sound Health Corporation, and Southeast Regional
Health Corporation filed a brief in support of the Respondent.
court’s remand.4 The Board has considered the decision
and the record in light of the court’s remand and the par-
ties’ statements of position. For reasons explained more
fully in San Manuel Indian Bingo & Casino, 341 NLRB
No. 138 (2004), a companion case issued today, we have
adopted a new approach for determining the Board’s
jurisdiction over enterprises associated with Indian
tribes. Pursuant to this new approach, we overrule our
previous decision and, exercising our discretion, decline
to assert jurisdiction in this case.
Background
The facts are articulated in greater detail in our initial
decision in this case. See 328 NLRB at 761–762. Most
pertinent for present purposes is that the Respondent is a
regional nonprofit corporation formed in 1969 to provide
a comprehensive health services program for Southwest-
ern Alaska. It is governed by a 20-member board of di-
rectors whose members are elected by the membership of
the tribal governments of 58 Alaskan Native tribes lo-
cated in the Yukon-Kuskokwim Delta area. In 1991, the
Respondent took over the operation of the hospital at
issue here, under the ISDA. Only 1 or 2 members of the
approximately 40 employees in the petitioned-for bar-
gaining unit are Native Alaskans. Ninety-five percent of
the patients of the Respondent’s hospital are Native
Alaskans. The Respondent does not charge Native Alas-
kans for the services they receive at the hospital. Those
services are covered by the annual Federal funding the
Respondent receives from the Federal Government to
operate the hospital, pursuant to Federal Government’s
trust responsibility to provide health care for Indians.
Analysis
In San Manuel Indian Bingo & Casino, decided today,
we concluded that the Board’s statutory jurisdiction gen-
erally extends to Indian tribes and tribal enterprises, re-
gardless of whether they are located on or off reservation
land. In determining whether or not Federal Indian pol-
icy nevertheless required the Board to decline jurisdic-
tion in a specific case, we adopted the test articulated by
the U.S. Court of Appeals for the Ninth Circuit in Dono-
van v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1115
(9th Cir. 1985), and derived from the broad principle of
Federal Power Commission v. Tuscarora Indian Nation,
4 The Respondent also filed a motion to remand the case to the Re-
gional Director for the limited development of supplemental facts relat-
ing to the issue on remand and a motion for oral argument. The Gen-
eral Counsel opposed the motion to reopen the record. Finding the
record and the pleadings sufficient to address the issues posed, we deny
both motions.
The Respondent has asked the Board to include in the record a
statement of position from the director of the Indian Health Service. In
view of our conclusion in this case, we do not pass on this request.
341 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
362 U.S. 99, 116 (1960). Finally, we announced the pol-
icy considerations that will govern the Board’s exercise
of discretionary jurisdiction over Indian tribal enter-
prises, in cases where application of the Tuscarora—
Coeur d’Alene standard permitted the Board to exercise
jurisdiction.
The remand in this case requires us to address whether,
by nature of its status as a tribal compactor under the
ISDA, the Respondent is exempt under Section 2(2) of
the National Labor Relations Act as an arm of the Fed-
eral Government. We accept the remand on this issue
and reaffirm our finding at our initial decision that the
Respondent is not exempt on this basis. We then follow
the approach announced in San Manuel to conclude that
while the Board is free to assert jurisdiction here, policy
considerations weigh against doing so.
1. The Respondent is not a component of the Federal
Government. The ISDA treats tribal compactors as enti-
ties distinct from the Federal Government. The ISDA, in
particular in the 2000 amendments to the statute, empha-
sizes the government-to-government nature of the rela-
tionship between ISDA compactors and the Federal
Government. See, e.g., “Tribal Self-Governance Amend-
ments of 2000,” P.L. 106–260, 114 Stat. 711, § 2(2), (4),
and (6)(A), and § 3(2)(E); 25 U.S.C. § 458aaa–3(a) and
(b), –4(a), –16(c). Indeed, the Respondent itself and its
amici repeatedly argue in their position statements on
remand that the Respondent under the ISDA is in a gov-
ernment-to-government relationship with the Federal
Government. Such an emphasis makes clear that the
ISDA contemplates that tribal compactors, such as the
Respondent, are entities separate from the Federal Gov-
ernment. As a separate entity, the Respondent cannot be
an arm of the Federal Government.
Other provisions of the ISDA further support the find-
ing that a tribal compactor is not an arm of the Federal
Government. For example, the ISDA provides that the
Contracts Dispute Act applies to ISDA tribal compactors.
25 U.S.C. § 450m–1(d). In addition, tribal compactors’
records are not considered Federal records under the
ISDA. See 25 U.S.C. § 458aaa–5(d)(1). If the tribal
compactors stood in the shoes of the Federal Govern-
ment, presumably their records would be Federal re-
cords, just like the records of other Federal actors. Most
significantly, Congress delineated several “inherently
federal functions” that could not be delegated to ISDA
compactors because they are not Federal governmental
entities. See 25 U.S.C. § 458aaa(a)(4). This provision
directly contradicts the Respondent’s assertion that the
ISDA accords tribal compactors the status of a Federal
actor. Accordingly, we reaffirm our finding that the Re-
spondent is not excluded from the Act’s jurisdiction un-
der the Section 2(2) exemption for the United States.5
Further, for the reasons set forth in San Manuel, the Re-
spondent is not exempt as a State or political subdivision
of a State.
2. Consistent with San Manuel, our next step is to as-
sess whether the assertion of the Board’s jurisdiction is
appropriate under the Tuscarora—Coeur d’Alene analy-
sis. In our initial decision in this case, we concluded that
application of the Tuscarora—Coeur d’Alene analysis
established no barrier to the Board’s assertion of jurisdic-
tion. 328 NLRB at 764. We find no reason to revisit
that determination now. See NLRB v. Chapa De Indian
Health Program, 316 F.3d 995, 1001–1002 (9th Cir.
2003) (finding that under the Tuscarora—Coeur d’Alene
analysis Board jurisdiction is not plainly lacking).6
3. Finally, San Manuel requires that we consider
whether policy considerations favor the assertion of the
Board’s discretionary jurisdiction. In making this deter-
mination, we balance the Board’s interest in effectuating
the policies of the Act with the need to accommodate the
unique status of Indians in our society and legal culture.
We find that policy considerations weigh against the
Board asserting its discretionary jurisdiction in this case.
As articulated in San Manuel, when an Indian tribe is
fulfilling a traditionally tribal or governmental function
that is unique to its status, the Board’s interest in assert-
ing jurisdiction is lower than when the tribe is acting in a
typically commercial manner. Here, the Respondent is
fulfilling just such a unique governmental function. The
Respondent, as an ISDA compactor, is fulfilling the Fed-
eral Government’s trust responsibility to provide free
health care to Indians. As the Respondent pointed out in
its position statement on remand, under the Indian Health
Care Improvement Act (25 U.S.C. § 1601) (IHCIA),
Congress recognized that “it is the policy of this Nation,
in fulfillment of its special responsibilities and legal ob-
ligation to the American Indian people, to assure the
highest possible health status for Indians and to provide
all resources necessary to effect that policy.” 25 U.S.C.
§ 1602(a); see also White v. Califano, 437 F. Supp. 543,
557 (D.S.D. 1977) (“Congress has unambiguously de-

5 As stated above, in San Manuel, we overruled our precedent to the
extent that it provided that the quasi-governmental nature of Indian
tribes compelled an exemption by analogy to the governmental entities
that are expressly excepted in Sec. 2(2). That Congress describes the
tribes in the ISDA as participating in a government-to-government
relationship with the Federal Government does not undermine that
conclusion. As explained in San Manuel, the legislative history of the
ISDA demonstrates that Congress did not intend the ISDA to create an
exemption to the NLRA for ISDA compactors.
6 Our concurring colleague disagrees that the Tuscarora—Coeur
d’Alene analysis is appropriate. For the reasons articulated in our deci-
sion in San Manuel, we adhere to the application of that analysis here.
YUKON KUSKOKWIM HEALTH CORP. 1077
clared that the federal government has a legal responsi-
bility to provide health care to Indians.”). As discussed
in San Manuel, Federal Indian law discourages interfer-
ence in the affairs of Indians when they act in a manner
consistent with their unique status.
Moreover, although the Respondent’s level of inter-
state commerce is sufficient to meet the Board’s mone-
tary jurisdictional limits, the Respondent’s impact on
interstate commerce is relatively limited. Ninety-five
percent of the Respondent’s hospital’s patients are Na-
tive Alaskans from the Yukon-Kuskokwim Delta area.
Indeed, the Respondent, as the primary health care pro-
vider in the area, does not compete with other hospitals
that are within the purview of the Act’s jurisdiction.
Accordingly, we find that the character of the Respon-
dent’s enterprise and its principal patient base militate
against the Board’s assertion of jurisdiction. In addition,
we find that the impact of those factors that might favor
asserting jurisdiction is mitigated by the particular facts
of this case. For example, the fact that the Respondent is
not operating on a reservation could be considered by the
Board as a factor favoring the assertion of jurisdiction.
Here, however, the Respondent’s off-reservation location
is given less weight because no reservations exist in
Alaska. Thus, Native Alaskans have no choice but to
operate off reservation.
That the Respondent employs mostly non-Native
Alaskans also may be considered a factor weighing in
favor of asserting jurisdiction. We accord less weight to
that fact here, however, because the makeup of the work-
force is likely to change. One purpose of the ISDA and
the IHCIA is to increase the number of Native Ameri-
cans in the health care professions and both acts include
mechanisms to accomplish that goal. See 25 U.S.C. §
450e(b); 25 U.S.C. § 1612–1614.
Our decision to decline to assert jurisdiction here is the
product of a careful balancing of the Board’s interests in
advancing the Act’s statutory goals and in respecting
Federal Indian law and policy.7 As such, we believe we
have met the D.C. Circuit’s mandate on remand to con-
sider how best to accommodate Federal Indian law.8

7 In declining to assert jurisdiction we place no reliance on the Re-
spondent’s contention that jurisdiction would be inappropriate because,
as an ISDA compactor, its labor-relations decision making is con-
strained by congressional appropriations and is based on governmental,
rather than commercial, considerations. The Board rejected such con-
cerns in Management Training Corp., 317 NLRB 1355 (1995), when it
asserted jurisdiction over a Federal contractor even though the contrac-
tor could not bargain over those terms and conditions of employment
established by the Federal Government.
8 We emphasize that our decision does not represent a categorical
exclusion for all ISDA compactors. Rather, we will engage in the same
balancing test in each case. Where the factors are different—for exam-
ple, because the percentage of non-native patients is higher or because
Therefore, under these circumstances, we find that ju-
risdiction is not appropriate. Accordingly, we overrule
our previous decision and dismiss the complaint.
ORDER
The complaint is dismissed.

MEMBER SCHAUMBER, concurring.
Relying on a balancing of competing policy interests,
the majority declines to assert jurisdiction over the Re-
spondent, a nonprofit corporation established by Native
Alaskan Tribes to provide free health care services to
their members. I agree with my colleagues that the
Board does not have jurisdiction over the Respondent,
and I join in dismissing the complaint in this case. I do
not, however, subscribe to the majority’s reasoning, and
I therefore write separately to explain my views.
The Respondent was formed in 1969 by 58 Alaskan
Native Tribes located in the Yukon-Kuskokwim Delta
area in Southwestern Alaska to provide health services
to their members.1 It is controlled by a board of direc-
tors elected by the 58 tribes’ governing councils. With
the passage of the Indian Self-Determination Act of
1975 (ISDA), 25 U.S.C. § 450 et seq., the Respondent
assumed responsibility from the Federal Indian Health
Service for the operation of a network of clinics located
in native villages within its service area and, in 1991,
the Respondent assumed control of an Indian Health
Service hospital located in Bethel, Alaska. All this was
pursuant to the mandate of the ISDA, which calls for the
transfer to Indian tribes of the “planning, conduct, and
administration” of programs and services provided to
Indians and Native Alaskans by the Federal Government.
The Federal Government has recognized the Respondent
as an “Indian tribe” for ISDA purposes.2
The majority today concludes that, for policy reasons,
it is not “appropriate” for the Board to assert jurisdiction
over the Respondent. The majority cites the following
factors in support of its decision: (1) the Respondent is
performing a traditionally tribal or governmental func-
tion; and (2) the Respondent’s impact on interstate com-
merce is relatively limited, in that 95 percent of the Re-
spondent’s hospital patients are Native Alaskans and it
has no competitors who are subject to NLRB jurisdic-
tion. My colleagues assert that they might reach a differ-
ent result if the percentage of non-native patients treated
by the Respondent were higher or if it competed directly

the compactor competes directly with a hospital covered by the Act—
the Board’s decision regarding the assertion of its discretionary juris-
diction may be different.
1 In practice, 95 percent of the Respondent’s hospital patients are
Native Alaskans.
2 Yukon-Kuskokwim Health Corp., 234 F.3d 714, 715 (D.C. Cir.
2000).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
with a hospital covered by the Act. I agree with the result
reached by my colleagues, but for quite different reasons.
As stated in my dissenting opinion in San Manuel In-
dian Bingo & Casino, 341 NLRB No. 138 (2004), settled
principles of Federal Indian law establish that “infringe-
ments on a tribe’s sovereign authority are impermissible
absent express statutory language or a clear indication to
that effect in the statute’s legislative history.” For the
reasons that follow, tribal sovereignty would be infringed
if the Board asserted jurisdiction over the Respondent.
Because no expression of Congressional intent to abro-
gate that sovereignty is to be found in the Act, the Board
is without statutory authority to assert jurisdiction over
the labor relations of the Respondent.
The Board’s assertion of jurisdiction in this case would
infringe upon tribal sovereignty in two important re-
spects. First, it plainly would negate the authority of the
Respondent’s 58-member tribes to determine their own
form of government based on the “unique political, cul-
tural, and economic needs of tribal governments.”3 The
Respondent is not a commercial enterprise, but rather an
instrumentality of its 58-member tribes. It performs the
governmental function of providing free health care to
Native Alaskans, fulfilling the Federal Government’s
trust responsibility to these Native Americans.4 Applica-
tion of the Act would infringe on tribal sovereignty by
limiting the Respondent’s discretion in determining how,
where, and by whom this governmental service is to be
provided. Under the provisions of the Act, those deci-
sions would be subject to bargaining obligations and to
review by the Board to determine whether any provision
of the Act had been violated, all to the detriment of the
discretion the Respondent would otherwise enjoy.
Second, application of the Act would implicate princi-
ples of sovereign immunity by subjecting the Respondent
to potential awards for backpay damages and unpaid
benefits, thereby depleting resources necessary for the
provision of governmental services, including health
care, in the future. While Indian tribes do not enjoy sov-
ereign immunity against the United States, the imposition
of liability represented by the Board’s assertion of juris-
diction effects, in essence, a forced waiver of sovereign
immunity. Congress can, of course, waive tribal immu-
nity, but as the Supreme Court has made clear, any such

3 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62–63 (1978).
4 Congress has made the policy choice, through the ISDA, to en-
courage tribes to assume from agencies of the Federal Government the
responsibility for providing trust services, but the quintessentially gov-
ernmental nature of those services remains.
waiver must be “unequivocally expressed.”5 No such
expression of Congressional intent is present here.
In finding that assertion of jurisdiction by the Board
would impair tribal sovereignty, I am mindful of the fact
that the Respondent is not located within any federally
recognized reservation.6 This fact is of significance and
would point towards asserting jurisdiction in the typical
case. But this is not a typical case. As the majority
notes, there are no reservations in Alaska. Thus, Alaskan
Tribes have no choice but to operate outside of reserva-
tion boundaries. Moreover, as noted above, this case
does not involve a commercial enterprise but the provi-
sion of a governmental service, health care, without
charge to Native Alaskans who receive it. Under these
circumstances, asserting jurisdiction would impair tribal
sovereignty even though the Respondent is not located
on a reservation.
The majority and I rely on some of the same factors as
support for our decision not to assert jurisdiction over the
Respondent.7 We differ, however, on the significance to
be attached to them. For my colleagues, these factors
support their decision to choose not to assert jurisdiction
over the Respondent as a matter of policy. In my view,
evidence that asserting jurisdiction would impair tribal
sovereignty demonstrates that Congress has not given the
Board the statutory authority to assert jurisdiction here.
Nevertheless, the majority reaches the correct result in
their decision in this case today, and I therefore concur in
it.
5 Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 58. See also
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (“Con-
gress may abrogate the States’ constitutionally secured immunity from
suit in federal court only by making its intention unmistakably clear in
the language of the statute.”).
6 Compare my dissenting opinion in San Manuel, supra (finding
Board lacks jurisdiction over enterprise located on federally recognized
tribal reservation). See also Yukon-Kuskokwim Health Corp., supra, 234
F.3d at 717 (recognizing that tribal sovereignty “typically” is limited to
its geographical jurisdiction).
7 Unlike my colleagues, I do not rely on the absence of nonexempt
competition, because that fact has no bearing on whether application of
the Act would impair tribal sovereignty.