Class "C" Resolution

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CAU-63-85

Class "C" Resolution

No BIA Act ion Required.

RESOLUTION OF THE

NAVAJO TRIBAL COUNCIL

Re8;eaU'1aTitle 15, Chapter '1 of the Navajo

Trl 81 c e and Enacttnfn tn Place Therebt,

the Navajo Preference

Employment Xc

WHEREAS:

The Navajo Tribal Council is the governing body of the Navajo

Nation; and

2. It 18 imperative that enrolled members cf the Navajo Tribe are

recopl1ed as duly ent,tled individuals to preference in employment within or

near the Navajo Nation; and

Too many instances occur where employers, doing business

within or near the boundaries of the Navajo Nation or engaged in any contract

with the Navajo Nation, fail to provide notice or ensure job opportunities to

Navajo workers; an

Title 15, Chapter '1 of the Navajo Tribal Code must be revised to

meet the needs of Navajo workers seeking employment within or near the

Navajo Reservation; and

The Advisory Committee of the Navajo Tribal Council has

reviewed the proposed Navajo Preference in Employment Act and does

recommend to the Navajo Tribal Council by Resolution ACJY-138-85 the repeal

of Title 15, Chapter 1 of the Navajo Tribal Code and the enactment in ita

place, the Navajo Preference in Employment Act, attached hereto as Exhibit

"A"; and

6. The Office of Navajo Labor Relations and the Navajo Tribal

Councll's Labor and Manpower Committee has recommended new sections to Title

15, Chapter 7 of the Navajo Tribal Code to enforce Navajo preference laws in

employment; and

'1. It is in the best interest of the Navajo people that the Navajo

Tribal Council adopt such an act for the benefit of all Navajo workers seeking

employment within or near the Navajo Rese:rvation.

NOW THEREFORE BE IT RESOLVED THAT:

The Navajo Tribal Council hereby repeals in its entirety, Title 15,

Chapter '1 of the Navajo Tribal Code and enacts in its place, the Navajo

Preference in Employment Act. attached hereto and incorporated herein as

Exhibit "A".

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CERTIFICATION

I hereby certify that the foregoing resolution was duly considered

by the Navajo Tribal Council at a duly called meeting at Window Rock, Navajo

Nation (Arlsona), at which a quorum was present and that same was passed by

1 vote of 63 In favor and 0 oppoaed, th~ day of August, 1985.

Ch~~

Navajo Tribal Council

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Section 1.

Thia act ahall be cited as the Navajo Preference in Em~loy

ment Act and ia hereby codified as Title 15 Chapter 7 of the

Navajo Tribal Code.

Section 2.

TITLEa

PURPOSE:

.......

zzzl ••

The purposes of the Navajo Preference in Employment Act are:

To provide employment opportunities for the Navajo work

force a

To provide training for the Navajo peopleJ

To promote the economic development of the Navajo reservationa

To lessen the Navajo Nation's dependence upon off reservation sources of employment, income, goods and

1ervices;

To foster the economic self-sufficiency of Navajo familieaa and

To protect the health, safety, and welfare of Navajo

workers.

It is the intention of the Navajo Tribal Council ·that the

proviaions of thia Act be construed and applied to accomplish the purposes set forth above.

Section 3.

~FINITIONS:

The term "Board" means the Board of Directors of the ·office

of Navajo Labor Relations.

The term "employment" shall include, but is not limited to,

the recruitment, hiring, promotion, transfer, training,

upgrading, reduction-in-force, retention. and recall of

employees.

The term "employer" as used in this Chapter shall include

all persona, firma, associations, corporationa, and the

Navajo Tribe and all of ita agencies and inatrumentalitiea,

who engage the aervicea of any per1on for compenaation,

whether aa employee, agent, servant, or independent contractor.

The term "Navajo" mean• any enrolled member of the Navajo

Tribe.

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The term "ONLR" means the Office of Navajo Labor Relations.

The term "probable cause" shall mean a reasonable ground for

belief in the existence of facts warranting the proceedings

complained of.

The term "within" the Navajo reservation refers to the areas

w1 thin the

territorial jurisdiction of the Navajo Nation

pursuant to 7 NTC §254. The term "near" the Navajo Nation

means such areas in which Navajo Indian preference is

permissable, under federal law.

SECTION 4.

All employers doing business within or near the boundaries

of the Navajo Nation, or engaged in any contract with the

Navajo Nation shell:

__...______

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NAVAJO

EMPLOYMENT__ ______

PREFERENCE:

Give preference in employment to enrolled members of

the Navajo Tribe. Preference in employment shall include specific Navajo affirmative action plans and

timetables for all phases of employment to achieve the

tribal goal of employing Navajos in all job classifica-.

tions including supervisory, and management positions.

Specific Requirements for Navajo Preference

All employers shall include and specify a Navajo Indian

employment preference policy statement in all job

announcements and advertisements and employer policies

covered by this Chapter.

All employers shall post in a conspicuous place on its

premises for its employees and applicants a Navajo

preference policy notice prepared by the Office of

Navajo Labor Relations.

Any seniority system of an employer shall be subject to

this Chapter and all other labor laws of the Navajo

Nation. Such a seniority system shall not operate to

defeat nor prevent the application of Navajo Preference

Laws.

The Navajo Nation when contrF.cting with the federal or

state government or one of its entities shall include

provisions for Navajo preference in all phases of

employment as provided herein. When contracting with

ani federal agency, the term Indian preference may be

substituted for Navajo.preference for federal purpqses.

All employers shall utilize Tribal employment sources

and job services for employee recruitment and referrals.

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6 •. All employers shall advertise and announce all job va-

cancies in at least one newspaper and radio station

serving the Navajo reservation.

All employers shall use non-discriminatory job qualifications and selection criteria in employment.

All em~loyers shall not penalize, discipline. discharge

nor ta e any adverse action against any Navajo employee

without just cause. A written notification to the

employee citing such cause for any of the above actions

is required in all cases

All e~loyers shall maintain a safe and clean working

environment and p&ovide employment conditions which are

free of prejudice, intimidation and harassment.

10.

Training shall be an integral part of the specific affirmative action plans or activities for Navajo preference in Employment.

Minimum Employment Qualifications Requirements

In the application of Navajo preference in Employment

made by all employers, any Navajo applicant who meets

the minimum qualifications for a job, or who can do the

work required for a job shall be considered qualified,

regardless of the qualification of any non-Navajo

applicants.

For purposes of minimum job qualification determinations

made by all employers, education, training, joQ-related

experience, and ability to do the work required may be

considered.

SECTION 5.

All employers doing business or engaged in any proj.ect or

enterprise within or near th~ Navajo Nation shall submit

employment information and reports as required to the Office

of Navajo Labor Relations. Such reports, in a form acceptable to the Office of Navajo Labor Relations, shall include

all information necessary and appropriate to determine

compliance with the provisions of this Chapter. All reports

shall be submitted on a weekly, monthly, or quarterly basis,

as determined by the Office of Navajo Labor Relations.

SECTION 6.

REPORTS:

RIGHTS OF NAV~O WO_RKE....__R-.S:

The basic rights of Navajo workers to organize, bargain

collectively, strike, and peaceable picket to secure their

rights under the laws of the United States and the Navajo

Nation, shall not be abridged in any way by the Navajo

Nation, its political subdivisions, any private or public

employer, or agency within or near the Navajo NatiOi.l. The

- - - - ... , ... aru c t'nDV

right to strike and picket does not apply to employees of

the Navajo tribal government, its agencies, or enterprises.

It is declared to be the public policy cf the Navajo Tribe

of Indiana that the right of person tc· ...,.,rk on the Navajo

Reservation or any other land subject to the jurisdiction of

the Navajo Tribe, whether in private o(--F~· 1 ;)yment or for the

Navajo Tribe or any of its subdivisio·,.:., enterprises, or

wholly owned corporations, as now or hereafter constituted,

shall not be denied or abridged on account of membership or

non-membership in any labor organization.

SECTION 7.

~-_____....,

All employers doing business within or near the boundaries

of the Navajo Reservation or engaged in any contract with

the Navajo Nation shall pay the prevailing wage for the type

of work performed. The prevailins wage shall be determined

by the Office of Navajo Labor Relations.

The Office of

Navajo Labor Relations shall make wage surveys and collect

wage data for the purpose of determining prevailing wage

rates.

SECTION 8.

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PREVAILING WAGE:

HEALTH AND SAFETY OF _!AVAJQ_!!Q~RS:

No employer located within or near the Navajo Reservation or

contracting with ~he Navajo Nation shall engage in work

practices which endanger the health an~ safety of Navajo

workers. Work practices prohibited by this Section shall &e

established by regulations pr~~lgated pursuant to Section

16 of this Chapter. The Safety Department of the Navajo

Tribe shall be responsible for compliance with all health

and safety regulations.

SECTION 9.

CONTRACT PROVISIONS REgUIRING COMPLIANCE WITH LABOR

IIA.W:

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All contracts and subcontracts entered into by any employer

to be performed within or near the boundaries of the Navajo

Reservation, are subject to the provisions set forth in this

Chapter and any regulations promulgated hereunder, and all

such contracts and aubcontracts s~e subject to termination

at the diacretion of the Advisory CoDDDi ttee of the Navajo

Tribal Council for noncompliance with the provisions as set

forth herein; All auch contracts and subcontracts shall

contain a provision whereby the employer promises to co,ly

with the provision• of thi~ chapter and shall provide. or

termination of the contract ·or subcontract by the Advisory

Committee of the Navajo Tribal Council in case of breach of

such promise by the employer.

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In caaea of bids let and contract for construction:

Every notice and advertisement for bids shall contain

specific refeTence to the Guidelines for. Navajo Manpower Utilization Requirements;

Every contract for construction entered into shall contain all provisions necessary to insure the contractor's compliance with the Guidelines for Navajo Manpower Utilization Requirements.

In cases of agreements, leases, or permits, which ultimately

results in construction or employment activity taking place

within or near the Navajo Nation:

"1.

All leases, afreements, or permits issued by the Navajo

Tribe, includ ng mineral leases, shall contain a provision whereby the lessee, contractor, permittee, ·or any

sub-leasee, sub-contractor, assignee, agent or other

related third party thereof agrees to comply with the

labor pr.ovisions contained herein. Failure to comply

with this mandate shall be grounds for breach and

forfeiture of the lease-hold interest or other interest

granted by the Navajo Nation.

SECTION 10.

ENFORCEMENT OF THE NAVAJO PREFERENCE

ACT

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IN EMPL~NT.

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This Chapter shall be monitored and enforced by the Office

of Navajo Labor Relations (ONLR). The ONLR shall have the

authority to (1) conduct any fact finding inves~igation;

(2) to subpoena witnesses, documents, records, or any other

written material to assist in determining if the Navajo

.Preference in Employment Act has been violated; (3) to take

appropriate administrative acti~ns or remedies.

The ONLR shall investigate all complaints based upon alleged

violations of the Navajo Preference in Employment Act as set

forth in this Chapter:

The complaint shall be in writing, and shall be signed

and verified by the complainant. All complaints shall

be handled confidentially.

The complaint shall contain: a) an appropriate identification of the complainant(&) and the person(sl alleged

to have coDDitte·d the violations; b) the ~ate(s) on

which the violations occurred, or where such acts are

of a continuing nat:'.tTe. the period of time which acts

occurred; c) a clear and concise statement of the facts

constituting the alleged violation.

Either an individual or the Office of Navajo Labor Relations on its own initiative may file a complaint to

initiate an investigation.

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Upon a finding of probable cause that the Navajo Preference

in Employment Act has been or is being violated, the ONLR

shall (1) notify the employer of the violation (2) where

deficiencies are found to exist, take steps to secure

compliance and remedial action by informal means through

conference, conciliation, or persuasion. Before the employer can be found in compliance, it must submit a specific

commitment in writing to corrPct such deficiencies. The

commitment shall include the precise action to be taken, and

dates for completion.

If a solution cannot be obtained through voluntary and

informal means, the ONLR shall file a formal complaint with

the Board. The Board shall initiate a formal hearing pr~ceed

ing pursuant to Section 11.

If the Board concludes that the Navajo Preference in Empl~y

ment Act has been violated by an employer, after hearing, it

may then:

Issue a determination and enforcement orders to effectuate the purposes of the Navajo ?reference in Employment Act.

Refer matters involving contracts, agreements,lea$es

and permits to the Advisory Committee of the Navajo

Tribal Council for appropriate cancellation or forfeiture action.

Non-retaliation provision.

It shall be unlawful for an

~loyer to discipline,

discharge, threaten, or otherwise

discriminate against an employee in any manner concerning

the employee's compensation, terms, conditions, location, or

privileges of employment because such person has opposed·an

employment practice, or has made a charge, testified, or

assisted in any manner in any investigation, proceeding, or

hearing under this Chapter.

SECTION 11.

HEARING:

The Board shall conduct the hearing at a location to be

designated by the Board. The Board shall issue a notice of

bearing. The hearing shall be held within (30) days of the

filing of the formal complaint.

Notice : The Board is hereby authorized to issue notices of hearings. The time and place of the hearing

shall be clearly described in the notice. All notice

of alleged charges shall set forth in clea~ and simple

terms the nature of t"e alleged violations and ,hall

state (1) the violations may be contested at a hearing

before the Board of the Office of Navajo Labor Relations, and (2) any party may appear by counsel and

cross examine adverse witnesses.

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The Board is hereby authorized to administer oad...; and

compel attendance of any person at a hearing and to

compel production of any documents.

In the event a party does not make an appearance on the

day set for hearing, the Board is hereby authorized to

enter a default determination against the non appearing

party.

Burden of Proof: In any compliance review, complaint proceeding, investigation, or hearing, the burden of proof shall

be upon the employer to show compliance with the provisions

of this Chapter.

Hearing: The Board shall conduct the hearing in a fair and

·orderly manner and extend to all parties the right to be

heard.

The Board shall ~ot be bound by any formal rules

of evidence.

The employer, contractor, subcontractor, or parties to

the dispute shall have the opportunity to answer and

shall have the right to legal counsel, present witnesses, and cross-examine adverse witnesses.

The Board shall issue ~ts decision by a majority vote

of a quorum present and shall be signed by the Chairman

of the Board.

Copies of the decision shall be sent to all parties of

record in the proceeding by certified mail, return

receipt.

.5.

Records of the proceeding shall be recorded. Any party

may request a transcript of the proceeding at their own

expense.

The decision of the Board shall be final with a right

of appeal only on questions of law to the Court 'of the

Appeals of the Navajo Nation.

Section 12. Sanction:

In the event the employer is found by the Board, after

notice and hearing, that it has not complied with this

Chapter, the Board may:

Issue remedial orders which may include, but are not

limited to, the displacement of non-Navajo employees,

backpay, and re-instatement.

Notify the employer of the violation and grant a reasonable amount of time to be set by the Board within

which to comply with the labor laws of the tribe.

_.,_

Declare an employer, contractor, subcontractor in contempt of the Board if said party or witness fails to

abide by any determination or orders.

Assess damages and fines for non-compliance and award

payment as deemed appropriate.

se~k

an injunction from the Tribal Court to seal off

jobsite until such time as the employer, contractor, or subcontractor have complied with the orders of

the Board.

tt~

Section 13. AEE!!J:

Any party to the complaint shall have a right to appeal in

writing to the Court of Appeals of the Navajo Nation within

(10) days after receipt of the decision.

SECTION 14. NON-NAVAJQ_SPOUSES:

When a non-Navajo is legally married to a Navajo, he or she

shall be entitled to consideration for employment under the

Navajo preference policy.

Proof of marriage by a valid

marriage certificate shall be required. In addition such

Non-Navajo sponse shall be required to have resided with~~

the territorial jurisdiction of the Navajo Nation for a

continous one-year 2eriod immediately preceding the application for Navajo preference consideration.

Upon meeting the above requirements, such consideration

shall be limited to preference in employment where the

spouse would normally be in a pool of non-Navajo workers.

ln this instance, Navajo preference would place the nonNavajo spouse in the applicant pool of Navajos for consideration. However, preference prior it~' shall sti 11 be given

to all Navajo applicants who meet the minimum job qualifications within that pool.

SECTION 15. LIE-DETECTOR TEST:

No employer, employment agency, person, firm, or association, shall request or require any employee or prospective

employee to submit to, or take a polygraph examination as a

condition of obtaining employment or of continuing employment with such employe-r or discharg_e or discipline in any

manner en employee for failing, refusing, or declining to

submit to or take a polygraph examination.

For purposes of this section, "polygraph" means any mechanical or electrical instrument or device of any type used or

allciedly used to examine, test, or question individuals for

the purpose of determining truthfulness.. This provision

shall not apply to federal or state government employees.

•

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SECTION 16. ~EGAT!Q!_Qr AUTHORITY:

•

The Board of the Office of Navajo Labor Relations and the

Labor and Manpower Committee of the Navajo Tribal Council,

with the approval of the Advisory Committee of the Navajo

Tribal Council, are hereby delegated the authority to

promulgate regulations necessary for the enforcement and

implementation of the provisions of this Chapter.

SECTION 17. ALL PRIOR INCONSISTENT LAW IS REPEALED:

All prior Tribal laws, rules, regulations, and provisions of

the Navajo Tribal Code previously adopted which are inconsistent with this Chapter are hereby repealed.

SECTION 18. EFFECTIVE DATE AND AMENDMENT _QF THE ACT:

The effective date of this Chapter shall be 60 days after

the passage of the Navajo Preference in Employment Act by

the Navajo Tribal Council and shall remain in effect until

modified or repealed in accordance with Navajo Tribal law.

SECTION 19. ~RABILITY OF THE ACT:

If any provision of this Chapter or the application thereof

to any person, association, entity or circumstances is held

invalid, such invalidity shall not affect the remaining

provisions or applications thereof.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.