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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Ordinance is outdated and in need of revision in order to clarify the jurisdictionofthe Tribal Employment Rights Office and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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GRIC COUNCIL SECRETARY OFFICE
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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GRIC COUNCIL SECRETARY OFFICE
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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GRIC COUNCIL SECRETARY OFFICf
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
16
GRIC COUNCIL SECRETARY OFFICE
I
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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GRiC COUNCIL ScCRETAR 1 OFFICE
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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GRIC COUNCIL SECRETARY OFFICE
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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
Glue COUNCIL SECRETARY OFFICE
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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it
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
Recommended