GILA RIVER INDIAN COMMUNITYSACATON AZ 85247

ORDINANCE GR 02 09

THE GILA RIVER INDIAN COMMUNITY COUNCIL HEREBY ENACTS THE

FOLLOWING ORDINANCE WHICH AMENDS TITLE 12 OF THE GILA RIVER

INDIAN COMMUNITY LAW AND ORDER CODE

WHEREAS the Gila River Indian Community Council the Community Council is the

governing body ofthe Gila River Indian Community the Community and

WHEREAS the Community Council is authorized by Article XV 9 a 9 and 19 of the

Constitution and Bylaws ofthe Community March 17 1960 to enact ordinances

which promote and protect the health and welfare of the Community and its

members and

WHEREAS an alarmingly high number ofCommunity members as well as members ofother

Indian tribes living on or near the Reservation are unemployed or underemployedand have historically experienced barriers to employment opportunities and

WHEREAS recent economic development within the Community has increased employmentopportunities for Community members and members ofother Indian tribes and it

is necessary for the Community to have a clear and fair regulatory scheme with

regard to Indian and Community member preference and

WHEREAS the existing Title 12 ak a the Tribal Employment Rights Ordinance or TERO

Ordinance is outdated and in need of revision in order to clarify the jurisdictionofthe Tribal Employment Rights Office and

WHEREAS past labor activity within the Community has been a barrier to employmentopportunity to Community members and

WHEREAS the Community wishes to adopt an updated labor and employment ordinance that

has a clear and fair regulatory scheme with regard to Indian and Communitymember preference maximizes individual freedom of choice in the pursuit of

employment and encourages an employment climate conducive to economic

growth and

WHEREAS the Legislative Standing Committee recommends the enactment the 2008 Labor

Employment Ordinance ofthe Gila River Indian Community

NOW THEREFORE BE IT ENACTED the Community Council hereby amends the Gila

River Indian Community Law and Order Code by rescinding Title 12 a ka the

TERO Ordinance in its entirety and hereby approves and enacts the attached

2008 Labor Employment Ordinance of the Gila River Indian Community

GILA RIVER INDIAN COMMUNITY

ORDINANCE GR 02 09

PAGE20F2

which shall be codified at Title 12 Chapters 1 7 of the Gila River Indian

Community Law and Order Code

BE IT FURTHER ENACTED that the 2008 Labor Employment Ordinance shall be

effective ninety 90 calendar days after it is enacted by the Community Council

BE IT FINALLY ENACTED that the Governor or in the Governor s absence the Lieutenant

Governor is hereby authorized to take all steps necessary to carry out the intent of

this enactment

CERTIFICATION

Pursuant to authority contained in Article XV Section 1 a 7 9 18 19 b 8 10 and

Section 4 ofthe amended Constitution and Bylaws ofthe Gila River Indian Community ratified

by the Tribe January 22 1960 and approved by the Secretary ofthe Interior on March 17 1960

the foregoing Ordinance was adopted on the 7th of January 2009 at a regular CommunityCouncil Meeting held in District 3 Sacaton Arizona at which a quorum of 14 Members were

present by a vote of 14 FOR Q OPPOSE Q ABSTAIN ABSENT Q VACANCIES

GILA RIVER INDIAN COMMUNITY

ATTEST a GOVERNOR

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GILA RIVER INDIAN COMMUNITY

TITLE 12 LABOR EMPLOYMENT

CHAPTER 1 GENERAL PROVISIONS

12 101 Authority Findings Purpose

A Authority The Gila River Indian Community Constitution and Bylaws March 171960 were formed pursuant to the Indian Reorganization Act 25 V S C S 461 et seqand were adopted for the common welfare ofthe Community and provide structure for

the Community to enact ordinances governing conduct within the exterior boundaries of

the Reservation 25 U S C 476 The Community enacts this ordinance under itsinherent civil legislative adjudicative and regulatory authority

B Findings Recognizing that the well being and general welfare of members of the

Community is a concern of the highest priority for the Community Council the

Community Council finds

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1 That the Community enacts this ordinance to regulate certain activities within the

Reservation pursuant to its inherent authority as recognized in Montana v United

States 450 U S 544 1981

2 That employers engaged in conduct or activities dthin the Reservation pursuantto a contract lease agreement andor by having been issued a Communitybusiness license have explicitly agreed to the jurisdiction of the Community and

are subject to regulation under the laws ordinances and regulations of the

Community

3 That the activities regulated under this ordinance if left unregulated pose an

imminent threat to the political integrity economic security and health andwelfare ofthe Community

4 That the Community has jurisdiction to regulate the conduct ofemployers withinthe exterior boundaries of the Reservation notwithstanding the issuance ofanypatent and including rights ofway running through the Reservation

5 That an alarmingly high number ofCommunity members as well as members ofother Indian tribes living on or near the Reservation are unemployed or

underemployed and have historically experienced barriers to employmentopportunities

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6 That pursuant to the holding in Dawavendewa v Salt River Project AgriculturalImprovement and Power District 154 F 3d 1117 9th Cir 1998 employerssubject to Title VII of the Civil Rights Act of 1964 cannot have a tribal specificpreference policy because it is discrimination based on national origin but that

they can have a general Indian preference policy

7 That pursuant to the holding in Pink v Modoc Indian Health Project Inc 157

F3d 1185 9th Cir 1998 corporations wholly owned by the Community are a

part of the Community and an Indian tribe and are exempt from liability under

Title VII of the Civil Rights Act of 1964 because these corporations serve as an

arm ofthe Community

8 That the Community is not prohibited from requiring Community corporations to

have a Community member prefercnce policy and

9 That the recent economic development within the Reservation has increased

employment opportunities for Community members and members ofother Indiantribes and it is necessary for the Community to have a clear and fair regulatoryscheme vith regard to Indian and Community member preference

C Purpose The intent and purpose of this ordinance is to promote Indian employmentopportunities and to ensure compliance by employers with the requirements specified in

this ordinance that are intended to give preference in hiring to Indians In addition this

ordinance requires Community corporations to have a Community member preferencepolicy and a means to monitor Community corporation performance with regard to the

policy

12 102 Definitions

A Whenever used in this ordinance the terms listed below have the meanings indicatedwhich are applicable to both the singular and plural thereof When used in a context

consistent with the definition ofa listed defined term the term shaU have the meaning as

defined below whether capitalized or otherwise

1 Administrative law judge means an individual appointed by the Governor whosits as an administrative law judge and conducts administrative hearings for

appealable actions under this ordinance

2 Administrative law judge decision means the findings of fact conclusions of

law and recommended decisions issued by an administrative law judge

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3 Appealable action means an action that is subject to administrative appealpursuant to this ordinance

4 Community means the Gila River Indian Community11142008 final 2

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Community corporation means aCommunity enterprise or authority includingthose corporations incorporated under Community law where the Community is

the sole owner ofthe enterprise or authority

6 Community Council means the Gila River Indian Community Council

7 Community Court means the courts ofthe Gila River Indian Community

8 Community government means any department office authority enterprise or

entity of the Community that has expressly retained the Community s immunityfrom suit

9 Community member means an enrolled member of the Gila River Indian

Community

10 Community member preference means giving a preference in hiring to

Community members

11 Compliance order means the Director s written notice to an employer or

Community corporation ofa violation ofthis ordinance

12 Compliance plan means an employer s written plan indicating how the

employer will comply with the Indian preference requirements ofthis ordinance

13 Contractor or subcontractor means any employer that performs construction

related services or directly or indirectly supervises others to perform construction

related services For purposes ofthis ordinance construction related services

means constructing altering repairing rehabilitating or demolishing any

building highway road or other structure project development or improvement

14 Director means the Director of the Gila River Indian Community Tribal

Employment Rights Office

15 Employer means any person private or public corporation partnershipassociation firm managing body or other entity that employs five or more

individuals for wages within the exterior boundaries ofthe Reservation The term

employer shall include temporary employment agencies but does not include

the Community government or Community corporations

16 Final administrative decision means a decision by the Office that is subject to

review by the Community Court

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17 Governor means the individual elected to serve as the Chief Executive Officerofthe Gila River Indian Comm1U1ity pursuant to the Constitution and Bylaws of

the Gila River Indian Community approved March 17 1960

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18 Hiring preference for individual Indians means that ifan Indian person and non

Indian are equally qualified for an available job such job shall be offered to theIndian

19 Indian means a person who is an enrolled member of a federally recognizedIndian tribe

20 Indian tribe means any Indian tribe band nation or other organized group or

community including any Alaska Village or regional villager corporation as

defined in or established pursuant to the Alaska Native Claims Settlement Act 42

USC 1601 et seq which is recognized as eligible for the special programs and

services provided by the United States because of its member s status as Indians

21 Key employee means an employee who is in a top supervisory position or

performs a critical or highly specialized function such that an employer would

likely risk fmancial damage or loss ifthat task were assigned to a person unknown

to the employer

22 Labor organization shall be defined in the same manner as it is defined in

Section 2 5 of the National Labor Relations Act 29 U S C S 152 5 As

defined therein the term labor organization means any organization ofanykind or any agency or employee representation committee or plan in which

employees participate and which exists for the purpose in whole or in part of

dealing with employers concerning grievances labor disputes wages rates of

pay hours of employment conditions of employment or other forms of

compensation

23 Office means the Gila River Indian Community Tribal Employment RightsOffice

24 Ordinance means Title 12 Chapters 1 7 of the Gila River Indian CommunityLaw and Order Code

25 Reservation means all those lands located within the exterior boundaries oftheGila River Indian Reservation as created pursuant to the Act of February 281859 and modified by executive orders ofOctober 31 1876 June 14 1879 May5 1882 November 15 1883 March 22 1911 May 8 1911 July 31 1911December 16 1911 June 22 1913 August 27 1914 and July 19 1915

26 Reservation based employer means any employer with a place of business

located withinthe exterior boundaries ofthe Reservation

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B Unless stated otherwise in this ordinance words or phrases which have a well known

meaning are used in this ordinance in accordance with such recognized meaning

12 103 No waiver of sovereign immunity from suit Nothing contained in this chapter waives

the Community s sovereign immunity from suit

12 104 Severability Ifany provision of this ordinance or the application thereof to any person

or circumstance is held invalid its invalidity does not affect other provisions or

applications of this ordinance which can be given effect without the invalid provision or

application and to this end the provisions ofthis ordinance are severable

12 105 Effective date This ordinance shall become effective ninety 90 calendar days after

passage by the Community Council

CHAPTER 2 TRIBAL EMPLOYMENT RIGHTS OFFICE

12 201 Establishment Powers and duties Limits on authority

A Establishment The Community does hereby reaffirm the establishment of the Office

which is a separate office under the directionofthc Governor

B Powers and duties In implementing the requirements of this ordinance the Office is

authorized to

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1 Require cmployers to establish or participate in such training programs and

establish hiring goals as set forth in regulations adopted in accordance with

Section 12 203

2 Require employers to give a hiring preference for individual Indians as set forth in

this ordinance and pursuant to regulations adopted in accordance with Section

12203

3 Prohibit employers from paying employees disparate wages based on race or

gender

4 Establish programs in conjunction with other Community state and federal

offices to provide counseling to Indian workers to assist them in retainingemployment

5 Enhance public awareness ofthe applicability ofthe Community federal and state

employment and labor laws to employers Community corporations and

Community government the rights ofemployees under these different laws and

the complaints resolution process under these different laws

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6 Implement compliance procedures to monitor employers compliance with the

requirements of this ordinance and the regulations adopted in accordance with

Section 12203

7 Investigate claims that employers are in violation of the Indian preference policyenumerated in this ordinance or the rules regulations and procedures adopted in

accordance with Section 12 203 subject to the limitations set forth in 12 201

8 Mediate and facilitate the settlement of legitimate Title VII claims againstemployers in accordance with the rules regulations and procedures adopted

pursuant to Section 12 203 and

9 Take such other actions as necessary to implement the provlSlons of this

ordinance and the rules regulations and procedures adopted in accordance with

Section 12 203

C Limits on authority In carrying out the powers and duties as set forth in Section

12 201 B the Office is not authorized to

1 Require quotas of eligible Indians receiving employment preference Wlder the

authority ofthis chapter

2 Require employers to provide salaries or rates ofpay that are higher than the

minimum requirements under applicable Community federal and state law or

established in a lease construction contract or other agreement between an

employer and the Community or Community corporation

3 Be involved in labor and union negotiations between employers and employees

4 Subpoena documents require employers to disclose personnel files contrary to

federal state or CommWlity law or require employers to disclose confidential

agreements without consent ofthe parties to the confidential agreements or

5 Arrest employers or criminally enforce any violation ofthis ordinance

12 202 Director

A The Office shall employ a Director who shall be responsible for administering the

provisions ofthis ordinance The Director shall have authority to hire staff expend funds

appropriated by the Community Council and to obtain and expend funding from federal

state or other sources to carry out the purposes of the Office so long as fundingagreements from federal state or other sources do not include requirements contrary to

the provisions ofthis ordinance

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B The Director shall review all employer compliance plans and may require reasonable

changes to compliance plans necessary for the employer to comply with the requirementsofthis ordinance

C The Director shall make biannual reports to the Community Council on the state of

employment within the Community

12 203 Rules regulations and procedures

A The Director is authorized to establish reasonable rules regulations and procedures

necessary for the efficient enforcement and administration of this ordinance Such rules

regulations and procedures shall be established in accordance with the policies and

standards enumerated throughout this ordinance When approved by the CommunityCouncil such rules regulations and procedures shall be binding upon all persons subjectto this ordinance

B A copy ofall rules regulations and procedures shall be furnished to any person subject to

this ordinance upon request

C The Director shall conduct a comprehensive review of the rules regulations and

procedures at least once every three years

D Prior to the approval of such rules regulations and procedures by the CommunityCouncil at least one hearing shall be held for all interested parties to review and

comment on the substance of the rules regulations and procedures Reasonable notice

shall be given to all interested parties as to the time and place of the hearing s

CHAPTER 3 RESERVED

CHAPTER 4 INDIAN PREFERENCE

12 401 Applicability The requirements of this chapter shall apply to all employers operatingwithin the exterior boundaries ofthe Reservation

12 402 Hiring preference for individual Indians

A All employers as defined in Section 12 102 A 15 shall give a hiring preference to

individual Indians for all open employment positions and may recruit and hire workers

from whatever sources are available to them to achieve the preference hiring goalsNotwithstanding the foregoing employers that are construction contractors or

subcontractors shall follow the hiring requirements in Section 12404

B The term open employment positions does not include those open positions where the

employer intends to fill the position by promotion or transfer within the employersbusiness

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C The term open employment position refers only to open positions located within the

exterior boundaries of the Reservation Notwithstanding the foregoing temporary

employment agencies which employ five or more employees within the exterior

boundaries of the Reservation within a calendar year shall give a hiring preference to

individual Indians

D Reasonable employment qualifications may be established by an employer Such

employment qualifications shall not serve as a barrier to Indian employment unless the

employer can demonstrate that they are required by business necessity

12403 Requirements for Reservation based employers

A Applicability Section 12 403 applies only to Reservation based employers

B Compliance plan

1 All Reservation based employers shall be required to submit prior to

commencing business on the Reservation a written compliance plan indicatinghow the employer will comply with the Indian preference requirements of this

chapter A Reservation based employer s compliance plan shall include

a The employer s name address phone number and contact person and

b The anticipated number ofemployment positions and the job title for each

anticipated employment position

2 Compliance plans for Reservation based employers may be memorialized in a

lease management or other long term agreement or may be submitted yearly in

which case compliance plans shall be reviewed annually by the Office and revised

as necessary to reflect changes in the number of employees or changes in a

Reservation based employer s hiring plans

3 Reservation based employers may be required to submit yearly compliance planupdates unless stated otherwise in a lease management or other long term

agreement If required compliance plan updates shall be due on January 31

beginning after the first full calendar year following submission ofthe employer s

initial compliance plan

4 All Reservation based employers that are engaged in business on the Reservation

prior to the effective date ofthis ordinance shall submit a compliance plan no later

than forty five 45 days after receiving written notification from the Director

Notwithstanding the foregoing a Reservation based employer that is engaged in

business on the Reservation prior to the effective date of this ordinance may

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memorialize a compliance plan by amending its lease management or other long

term agreement

12404 Requirements for eonstruction contradors and subcontractors

A Applicability Section 12404 applies only to construction contractors and

subcontractors

B Compliance plaD

1 All construction contractors and subcontractors shall submit a written compliance

plan indicating how the employer will comply with the Indian preferencerequirements of this chapter The compliance plan for any construction contractor

or subcontractor shall include the following

a The contractor or subcontractor s name address phone number and

contact person

b The number of man hours by craft and skill category needed on the

project

c A list ofpositions that can be immediately filled by Office referrals

d A list of positions that cannot be immediately filled by Office referrals

but will be required to follow the hiring procedures set forth in Section

12 404 C and

e A list of positions that the Office has designated as key employee

positions or for which the Office has determined that there are no qualifiedIndian applicants for the positions

2 A contractor that intends to engage in work on the Reservation shall not

commence such work until the Director and the contractor have negotiated and

signed a compliance plan which in addition to the requirements of Section

12404 B 1 includes a list of trades that will be subcontracted a schedule

indicating when the subcontracted trades will be required on the work site and a

methodology for ensuring that the contractor s subcontractors comply with the

requirements of Section 12404 B 3 If the Office and contractor fail to

negotiate compliance plan within five 5 business days from the date the

contractor s construction agreement has been executed the contractor may engage

in work on the Reservation but in no event shall a contractor be permitted to

work on the Reservation without a signed compliance plan beyond fifteen 15

days from the date the contractor s construction agreement has been executed A

contractor shall have the initial and primary responsibility for ensuring that all

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subcontractors comply with the requirements of Section 12404 B 3 and may

negotiate and agree to a compliance plan on its subcontractors behalf

3 A subcontractor that is retained by a contractor shall not commence work until it

has signed a compliance plan which includes the requirements of Section

l2404 B 1 or if the contractor who has retained it has entered into a

compliance plan on its behalf

C Hiring for open positions

1 When a contractor or subcontractor has ajob opening for one ofthe positionslisted pursuant to Sections 12404 B 1 c d itmay not employ a non Indian

for the position unless

a The Office has determined in writing that there is no qualified Indian

applicant for the open position

b The Office fails to refer a qualified Indian ithin two 2 business daysafter receiving writtennotice of the job opening

c The Office authorizes the contractor or subcontractor to utilize preferredtemporary employment agencies to fulfill this requirement or

d The Office waives this requirement

2 In an emergency situation when an employee is needed to fill a vacancyduringoff businesshours or whenthe Office is unavailable an employer may hire an

employee without notifying the Office as required in Section 12404 C 1

provided the employer notifies the Office ofthe emergency situation and hiringwithin two 2 business days Any abuse concerning this provision will result in

sanctions as provided in Section 12 406

12 405 Temporary Employment Agendes

A Applicability Section 12405 applies only to temporary employment agencies doing

business within the Reservation and employ five or more employees within the exterior

boundaries ofthe Reservation within acalendar year

B Compliance Plans

1 All temporary employment agencies subject to this chapter shall submit prior to

commencing business on the Reservation awritten compliance plan indicatinghow the employer will comply with the Indian preference requirements of this

chapter A temporary employment agency s compliance plan shall include

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a The employer s name address phone number and contact person

b The anticipated number of employees the employer will place within

exterior boundaries ofthe Reservation and

c The type ofjobs the employer will place its employees within the exterior

boundaries ofthe Reservation

2 Compliance plans for temporary employment agencies may be memorialized in a

long term agreement or may be submitted yearly in which case compliance plansshall be reviewed annually by the Office and revised as necessary to reflect

changes in the employer s hiring plans

3 Temporary employment agencies may be required to submit yearly complianceplan updates unless stated otherwise in a long term agreement If requiredcompliance plan updates shall be due on January 31 beginning after the first full

calendar year following submission ofthe employer s initial compliance plan

4 All temporary employment agencies that are engaged in business on the

Reservation prior to the effective date ofthis ordinance shall submit a complianceplan no later than forty five 45 days after receiving written notification from the

Director Notwithstanding the foregoing a temporary employment agency that is

engaged in business on the Reservation prior to the effective date of this

ordinance may memorialize a compliance plan by a long term agreement

C Preferred Agencies The Office shall maintain a list ofpreferred temporary employmentagencies which may be supplied to employers for their use In accordance with Section

12 203 the Office shall develop criteria for determining how a temporary employmentagency will be designated a preferred temporary employment agency

12 406 AdministrativeEnfor ement Procedures

A Investigation by Director Whenever a violation ofthis ordinance has been alleged and

brought to the attention of the Office the Director shall first initiate and complete an

investigation ofthe alleged violation

B Informal dispute resolution The Office is authorized to impose an administrative civil

penalty only as a last resort Prior to the issuance ofa compliance order or imposition of

any administrative civil penalty the Director shall attempt to resolve any alleged non

compliance of this ordinance by informal means The Director shall set a meetingbetween the employer and the Office The parties shall meet to discuss the disputedmatter and attempt to resolve the alleged non compliance prior to the issuance of a

compliance order

C Administrativecivil penalties for violations by contractors and subcontradors

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1 Ifthe Director determines that a violation of this ordinance exists the Director

may issue a written compliance order to the contractor or subcontractor requiring

compliance immediately or within a specified period of time and may impose an

administrative civil penalty of up to 500 per day per violation Each day of

failure to perform any act or duty required by this ordinance orby the regulations

adopted in accordance with Section 12 203 shall constitute a separate offense

2 The compliance order shall include

a The name and address ofthe contractor or subcontractor

b The nature ofthe alleged violation

c The specific section of this ordinance or the specific regulation adopted in

accordance with Section 12 203 which has been violated

d A reasonable timeframe within which the non compliant contractor or

subcontractor is to comply and

e Notice of the right to appeal under Sections 12408 and Section 12409

3 A compliance order shall be transmitted to the alleged violator by certified mail

return receipt requested orby personal service

4 A compliance order becomes fmal and enforceable in the Community Court

unless within thirty 30 days after receipt of the compliance order the allegednoncompliant contractor or subcontractor requests an appeal pursuant to Sections

12408 and 12 409 If an appeal is requested the compliance order does not

become final until the procedures contemplated by Sections 12408 and 12 409

are complete No civil penalty as provided by Section 12406 C 1 shall accrue

while an appeal pursuant to Sections 12408 and 12409 is pending

5 After a compliance order becomes fmal the Community s General Counsel may

at the request of the Governor file an action in the Community Court to enforce

compliance orders issued under this section

D Administrative civil penalties for violations for Reservation based employers

1 Ifthe Director determines that a violation of this ordinance exists the Director

may issue a Titten compliance order to the Reservation based employerrequiring compliance immediately or within a specified period of time and may

impose anadministrative civil penalty as set forth in Sections 12406 D 1 aHd

Subject to Sections 12406 DXl a b each day of failure to perform any act or

duty required by this ordinance or by the regulations adopted in accordance with

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Section 12 203 shall constitute a separate offense In determining the total

amount of the administrative civil penalty applicable the following shall apply

a One 1 or two 2 violations within two 2 consecutive calendar years

500 per day with a maximum total of 2 500

b Three 3 or four 4 violations within two 2 consecutive calendar years

500 per day witha maximum total of 7 500

c More than five 5 violations withintwo 2 consecutive calendar years

500 00per day withno maximum total

d Ifthe violation is not corrected within thirty 30 days after the complianceorder becomes final then the maximum totals set forth in Section

12406 D I a b shall no longer apply

2 The compliance order shall include

a The name and address ofthe Reservation based employer

b The nature ofthe violation

c The specific section of this ordinance or the specific regulation adopted in

accordance with Section 12 203 which has been violated

d A reasonable time frame within which the non compliant Reservation

based employer is to comply and

e Notice ofthe right to appeal under Sections 12408 and 12409

3 A compliance order shall be transmitted to the alleged violator by certified mail

return receipt requested or by personal service

4 A compliance order becomes final and enforceable in the Community Court

unless within thirty 30 days after receipt of the compliance order the allegednoncompliant Reservation based employer requests an appeal pursuant to

Sections 12408 and Section 12 409 If an appeal is requested the complianceorder does not become final until the procedures contemplated by Section 12 408

and 12409 are complete No civil penalty shall accrue while an appeal pursuantto Sections 12 408 and 12 409 is pending

5 After a compliance order becomes final the Community s General Counsel may

at the request ofthe Governor fIle an action in the Community Court to enforce

compliance orders issued under this section

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12 407 Injunctive relief Ifthe administrative enforcement procedures as provided by Section

12406 have failed to correct the alleged vioLation s ofthis ordinance or ifthere is willful

refusal to abide by the provisions of this ordinance or by the regulations adopted in

accordance with Section 12 203 after a written compliance order has been issued the

Community s General Counsel may at the request of the Governor file an action for a

temporary restraining order a preliminary injunction or a permanent injunction

12 408 Administrative appeals

A Pursuant to the procedures contemplated by Section 12 203 the Office shall establish

regulations that provide for a fair and reasonable administrative appeals process The

administrative appeals process shall

1 Allow employers to appeal all orders penalties or other actions made by the

Office pursuant to this ordinance or pursuant to the regulations adopted in

accordance with Section 12203 which may have an adverse impact on the

employer

2 Include fair and reasonable notice provisions which shall identify the specificprovision of this ordinance or the specific regulation adopted in accordance with

Section 12 203 that is alleged to have been violated or upon which the action is

based and shall also include a description ofthe party s right to appeal and request

a hearing on the matter

3 Ensure that administrative hearings are scheduled within a reasonable time and

that employers are afforded a reasonable amount of time to prepare for an

administrative hearing and

4 Require that all administrative appeals are heard by an administrative law judgeand that a decision made by an administrative law judge becomes the Office s

final administrative decision

B Any final administrative decision made pursuant to Section 12408 shall be subject to

judicial review pursuant to Section 12409

12 409 Judicial review offmal administrative decisions

A Section 12409 applies to and governs every action to review judicially a fInal

administrative decision ofthe Office Unless review is sought ofa final administrative

decision within the time and manner provided in this Section 12409 the parties to the

proceeding shall be barred from obtaining judicial review of such decision

B An action to review a fInal administrative decision shall be commenced by filing a

complaint within thirty 30 days from the date when a copy of the fInal administrative

decision sought to be reviewed is served upon the party affected The final

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administrative decision shall be deemed to have been served when personally delivered

or mailed by registered mail to the party affected at the last known residence or place of

business

c Jurisdiction to review a final administrative decision is vested in the Community Court

D In an action to review a final administrative decision a copy of the summons and

complaint shall be served upon the Office as in civil actions and as provided by the Gila

River Community Law and Order Code

E Within twenty 20 days after service of the summons and complaint the Office shall

answer the complaint

F Pleadings and record on review

I The complaint shall contain a statement of the findings and decision or part

thereof for which review is sought and shall clearly specify the grounds upon

which review is sought It shall also state what portion of the record the partyasserts is relevant to the review it is seeking and which portion the Office shall be

required to submit as partof the record on review

2 Except as otherwise provided the Office shall file an answer which shall contain

the original or a certified copy of the portion of the record designated in the

complaint The answer ofthe Office may also contain other portions ofthe record

as the Office deems relevant By order of the court or by stipulation ofall partiesto the action the record may be shortened or supplemented

3 If as a result ofjudicial review the cause is remanded to the Office and a review

thereafter is sought of the final administrative decision the original and

supplemental record or SO much thereof as is determined by court order or

stipulation ofall parties shall constitutethe record on review

G Scope of review

1 An action to review a final administrative decision shall be heard and determined

within a reasonable time The hearing and determination shall be extended to all

questions oflaw and fact presented by the entire record before the court No new

or additional evidence in support of or in opposition to a fmding order or

decision ofthe Office shall be heard by the court except in the event ofa trial de

novo or in cases where in the discretion of the court justice demands the

admission ofsuch evidence

2 The trial shall be de novo iftrial de novo is demanded in the complaint or answer

and if no hearing was held by an administrative law judge or the proceedings

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before the administrative law judge were not stenographically reported or

mechanically recorded so that a transcript might be made

3 A party who has demanded a trial de novo in the complaint or answer pursuant to

Section 12409 G 2 shall file prior to the time for filing the opening appellate

brief a motion explaining the need for a trial de novo with citation to legal

authority supporting the demand Any party opposing the motion may file a

response thereto

4 The Community Court may not reverse the finding of fact in the final

administrative decision unless it is clearly erroneous and it may not reverse afinal

administrative decision unless the decision has no substantial evidentiary basis in

the record or is erroneous as a matter of law

H Authority ofthe Community Court

I The Community Court may

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a With or without bond unless required by ordinance under authority of

which the final administrative decision was entered and before or after

answer stay the decision in whole or in part pending final disposition of

the case after notice to the Office and for substantial good cause shown

b Make any order that it deems proper for the amendment completion or

filing ofthe record ofthe proceedings by the Office

c Allow substitution of parties by reason of marriage death bankruptcyassignment or other cause

d Dismiss parties or realign parties as plaintiff and defendant

e ModifY affirm or reverse the decision in whole or in part

f Specify questions or matters requiring further hearing or proceedings and

give other proper instructions

g When a hearing has been held by the administrative law judge remand for

the purpose oftaking additional evidence if from the state ofthe record or

otherwise it appears that such action is just and

h In the case of affirmance or partial affirmance of a final administrative

decision requiring payment of money enter judgment for the amount

justified by the record and for costs upon which execution may issue

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GRIC COUNCIL SECRETARY OFFICE

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2 Technical errors in the proceedings before the administrative law judge or failure

to observe technical rules of evidence shall not constitute grounds for reversal of

the final administrative decision unless the trial court determines that the error or

failure affected the rights ofaparty and resulted in injustice to that party

3 On motion of a party before rendition of judgment the trial court shall make

fmdings offact and state conclusions of law upon which its judgment is based

1 The fmal decision order judgment or decree of the Community Court entered for an

action to review a decision of the Office may be appealed to the Community Court of

Appeals

J Where applicable all rules of civil procedure in the Community Court including rules

relating to appeals to the Community Court ofAppeals shall apply to all proceedings

CHAPTER 5 COMMUNITY MEMBER PREFERENCE

12 501 Appli bility The requirements of this chapter shall apply to all Communitycorporations operating withinthe exterior boundaries ofthe Reservation

12 502 Community member hiring preference

A All Community corporations shall give a hiring preference to Community members

individual Indians and spouses of Community members for all open employmentpositions Community corporations may establish their own methodology for complyingwith the hiring preference provided that such preference is prioritized in the followingenumerated order

1 Enrolled Community members

2 Other Indians and

3 Non Indian spouses ofenrolled Community members

B A Community corporation may recruit and hire workers from whatever sources are

available to them

12 503 Required employment policies procedures All Community corporations shall adoptemployment policies and procedures that utilize the Community member preferencepolicy described in Section 12 502 A and shall prohibit discrimination against anyemployee or applicant for employment because of race religion color sex disabilityage or status as a disabled veteran AU adopted employment policies and proceduresshall include a fair grievance procedure

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12 504 Submittal of policies procedures Reporting All Community corporations shall

submit their current employment policies and procedures including their grievance

procedures to the Office within one hundred eighty 180 days after the effective date of

the ordinance All Community corporations shall submit quarterly reports to the Office

which shall include

A A current list of the number of Community member other Indian and non Indian

employees

B The number of promotions or demotions within the quarter the number ofpromotionsand demotions year to date and whether each promotion or demotion was of a

Community member other Indian or non Indian employee

B The number ofterminations within the quarter the number ofterminations year todate

and whether each termination was ofa Community member other Indian or non Indian

employee

C The number of grievances tiled within the quarter the number of grievances filed year

to date and whether each grievance involved a Community member other Indian or

non Indian employee

D The final resolution ofgrievances filed year ta date and

E Any new or amended employment policies andor procedures adopted by the Community

corporation

12 505 Dispute resolution regarding Community member preference

A The procedures described in Section 12 505 shall only apply to disputes related to

Community corporation reporting requirements described in Section 12 504

B The Director shall strive to resolve all disputes that exist with a Community corporation

informally prior to taking any formal action

C If the Director determines that a violation of Section 12 504 exists the Director may issue

a written compliance order to the Community corporation requiring complianceimmediately or within a reasonable specified time period A written compliance order

shall be transmitted to the alleged violator by certified mail return receipt requested or

by personal service and shall include

1 The name and address ofthe Community corporation

2 The nature ofthe alleged violation

3 The specific subsection ofSection 12 504 which has beenviolated

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4 A reasonable time frame within which the non compliant Community corporationis to comply and

5 Notice ofthe right to mediate the dispute under Section 12 505D

D Ifa Community corporation fails to comply with the compliance orde within the time

specified in the compliance order or wishes to appeal the compliance order the

Governor shall meet with the non compliant Community corporation and Director to

mediate the dispute The Governor shall set the meeting no later than thirty 30 daysafter the earlier ofthe i date by which the Community corporation was to comply with

the compliance order or ii receipt of the Community corporation s written request to

appeal the compliance order

E If the Governor is not able to successfully mediate the dispute the matter shall be

referred to the Community Council for final resolution The Community Council shallconsider the matter in regular or special session and its decision shall be fmal

CHAPTER 6 RESERVED

CHAPTER 7 RIGHT TO WORK

12 701 Purpose The intent and purpose of this chapter is to maximize individual freedom of

choice in the pursuit ofemployment and to encourage an employment climate conduciveto economic growth so that the right to work shall not be subject to undue restraint or

coercion The right to work shall not be infringed or restricted in any way based on

membership in affiliation with or fmancial support ofa labor organization or on refusal

to join affiliate with or financially or otherwise support a labor organization

12 702 Employee rights No person shall be required to as a condition of employment or

continuation ofemployment

A Resign or refrain from voluntary membership in voluntary affiliation with or voluntaryfinancial support ofa labor organization

B Become or remain amember ofalabor organization

C Pay any dues fees assessments or other charges ofany kind or amount to a labor

organization

D Pay to any charity or otherthird party in lieuof such payments any amount equivalent to

or a pro rata portion of dues fees assessments or other charges regularly required ofmembers ofa labor organization or

E Be recommended approved referred or cleared by or through a labor organizationI 11412008 final 19

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12 703 Voluntary deductions It shall be unlawful to deduct from the wages earnings or

compensation ofan employee any union dues fees assessments or other charges to be

held for transferred to or paid over to a labor organization unless the employee has first

presented and the employer has received a signed written authorization of such

deductions which authorization may be revoked by the employee at any time by giving

written notice of such revocation to the employer

12 704 Agreements between labor organizations and employers Actions to induce such

agreements declared illegal Any agreement understanding or practice written or oral

implied or expressed between any labor organization and employer which violates the

rights of employees as guaranteed by provisions of this chapter is hereby declared to be

unlawful null and void and ofno legal effect Any strike picketing boycott or other

action by a labor organization for the sole purpose ofinducing or attempting to induce an

employer to enter into any agreement prohibited under this chapter is hereby declared to

be for an illegal purpose and is a violationofthe provisions of this chapter

12 705 Coercion and intimidation prohibited It shall be unlawful for any person labor

organization or officer agent or member thereof or employer or officer or agent

thereof by any threatened or actual intimidation ofan employee or prospective employee

or the employee s parents spouse children grandchildren or any other persons residingin the employee s or prospective employee s home or by any damage or threatened

damage to the employee s property to compel or attempt to compel such employee to

join affiliate with or financially support a labor organization or to refrain from doing so

or to otherwise forfeit his or her rights as guaranteed by provisions of this chapter It

shall also be unlawful to cause or attempt to cause such employee to be denied

employment or discharged from employment because of support or nonsupport ofa labor

organization by inducing or attempting to induce any otherperson to refuse to work with

such employee

12 706 Civil penalties Any person who directly or indirectly violates any provision of this

chapter shall be subject to a fine not exceeding one thousand dollars 1 000 per day per

violation Such liability shall be solely imposed on a labor organization or its

representative This provision shall not cause in any way a fine to be levied or become

due against the Community

12 707 Civil remedies Any employee injured as a result ofany violation or threatened violation

of the provisions of this chapter shall be entitled to injunctive relief against any and all

violators or persons threatening violations and may in addition thereto recover any and all

damages including costs and reasonable attorney fees of any character resulting from

such violation or threatened violation Such remedies shall be independent of and in

addition to the penalties and remedies prescribed in other provisions ofthis chapter

12 708 Duty to investigate It shall be the duty of the General Counsels office to investigatecomplaints of violation or threatened violations of this chapter and to prosecute all

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persons violating any of its provisions and to take all means at its command to ensure its

effective enforcement

11412008 final 21

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LABOR AND EMPLon1ENT

TITLE IZ

12 101

TRIBAL EMPLOYMENT RIGHTS OFFICE

TRIBAL EMPLOnIENT RIGHTS OFFICE

Chapter 1

1

The Gila River Indian Community herein called COMMUNITY

does hereby establish the COMl1UNITY Tribal Employment RightsOffice hereinafter called OFFICE as a separate office and

function of the Community Office of Employment and Training The

Director shall have the authority to hire staff expend funds

appropriated by the Council and to obtain and expend funding from

Federal State or otber sources to carry out the purpose of the

OFFICE The Office shall have the authority to issue rules

regulations and guidelines subject to the approval of the

COM ruNITY Council by this Chapter This OFFICE shall have the powerto hold hearings to subpoena witnesses and documents to requireemployers to submit reports and to take such other actions as are

necessary for the fair and vigorous implementation of this chapter

12 102 INDIAN PREFERENCE

All Employers operating within the Exterior boundaries of

the Gila River Indian Reservation hereinafter called RESERVATION Iare hereby required to give preference to Indians in employmentSaid employers shall comply w1th the rules regulations guidelines

tJl of the Community and the employment rights office that et out the

specific obligations of the employer in regard to Indian perferencet

12 103 UNIONS

Any covered employer who has a collective bargainingagreement with one or more unions shall obtain written agreementsfrom said union s stating that the union shall comply with theIndian preference laws rules regulations and guidelines of the

Community Such agreement shall be subject to approval of theEmployment Rights Office Such agreement does not constituteofficial tribal recognition or sanction of any union

12 104 POWERS AND DUTIES

In implementing the requirements of this chapter the

Employment Rights Office is authorized to

A Set hiring goals to be attained with reasonable expediency andspecify the minimum number of Indians an employer should hireby craft or skill level

B Require covered employers to establish or participate in such

training programs as the Office determines necessary in order toincrease the pool of qualified Indians on the Reservation as

quickly as possible1

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C Establish in conjunction with the Tribal Office of Employmentand Training Department a tribal job bank and impose a

requirement that no covered employer may hi e a non In ian untilthe Tribal Job Bank has certified that no qualified Indian isavailable to fill the vacancy

D Prohibit any covered employer from using qualificationscriteria or other personnel requirements that serve as barriersto Indian employment unless the employer can demonstrate tnatsuch criteria or requirements are required by business necessity

E To require employers to give preference in the award ofcontracts or sub contracts to tribal and other Indian ownedfirms and entities

F To establish programs in conjunction with other Tribal stateand federal offices to provide counseling to Indian workers toassist them in retaining employment Employers shall berequired to cooperate and support such counseling programs

G Take such other actions as necessary to achieve the purposes andobjectives of this chapter However the implementation of anyactivities or requirements that constitute a significant new

component to this program beyond those listed in subparagraphA through DIt shall be subject to the prior approval of the

CounciL

12 105 INTER AGENCY COORDINATIOrr

The Comprehensi ve Employment and Training Act programCET and the Bureau of Indian Affairs EmploYllent Assistance

Program shall devote such amount of their resources as is necessaryto preparing Indians for the jOb opportunities to be opened up by

n

the employment rights program Also the Tribal Office ofEmployment and Training is hereby mandated to establish a

Construction Worker Trainee Program and to obtain certification forthat program from the Department of Labor The Directors of theTribal Employment and Training Programs the Bureau of IndianAffairs DIA Employment Assistance Program and the TribalEducation Department shall coordinate with the Director of theBmployment Rights Office in the d velop ent of the training plans

12 106 FUNDING

The Tribal CETA Program shall make available to the officeup to five public Employment slots to pay the salaries of Officeemployees Within six months after the appointment of the OfficeDirector he or she shall present to the Tribal Council a plan forthe financing of the Office out of monies other than from the TribalTreasury The plan shall indicate the expected amount to revenuefrom the Employment Rights Fees and other potential sources offunding for the Office including but not limited to new funds orreallocations of existing funds from sources as CETA ONAP EEOCBlA Employment Assistance HUD and EDA

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12 107 INFORHAL DISPUTE RESOLUTIOll

c

The Tribal Employment Rights Qff ce is authorized to imposesanction s or penalties on any employer only as last resort TheDirector of TERO prior to imposition of sanction or penalties shallfirst attempt to resolve any alleged failure of compliance with thischapter by informal means

1 2 108 SANCTIONS AND PENALTIES

A Any employer who fails to comply with the laws rulesregulations or guidelines on employment rights of the Communityshall be subject to civil sanctions The Director in hisdiscretion may impose or recomllend imposition of any singlesanction or combination of the listed civil sanctions in thisSection for failure of any employer to comply with therequirements of the Chapter

B The Director shall have the authority to impose the followingsanctions without approval of the Community Council

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1 Require the employer to make such changes in its proceduresor policies as are necessary in order to comply with theserequirements

2 Provide back pay and or re employment promotion trainingand or other relief to Indians who were or are being harmedby the employer s non compliance

Impose monetary fines not to exceed one thousand dollars1 000 per day of non compliance for any single v ol lon

or failure to comply with any requirements imposed by thisChapter n any employer

4 Suspend the employer s operation until corrective action 1staken or a plan of corrective action is devel ped

The Director shall have the authority to impose the followingsanctions subject to approval of the Community Council

1 Terminate the employer s op ration on the Reservation

Prohibit the employer from engaging in future operations onthe Reservation

Any sanction or sanctions shall not be imposed on any e ployeruntil the affected employer has been first provided an

opportunity to present evidence to the Director showing anysanction or sanctions should not be imposed An employer shallbe provided at least five 5 days notice of any sanction orsanctions which is to be imposed by the Director or theCommunity Council

ri JUGRK tQu i Si itAR t