FMC Corp.

v.

Shoshone-Bannock Tribes Ex Rel. Tero Corp.

16 Indian L. Rep. 6026 (Sho-Ban. Tr. Ct., App. Div., Oct. 10, 1988)

MYERS, Appellate Judge

This order and compliance plan are made pursuant to this court's order dated September 7, 1988. The jurisdictional and factual basis upon which the plan is imposed is set forth in this court's opinion in this case rendered on May 19, 1988 [see 15 Indian L. Rep. 6023]. Since this court only heard testimony and reviewed evidence concerning the hiring controversy of individual Indian employees by FMC on the Fort Hall Reservation, this order and compliance plan addresses hiring practices concerning individuals. It has no force and effect upon issues of contracting and subcontracting nor does it address the Warbonnet Electric controversy.

The Shoshone-Bannock tribal government and FMC shall be bound by the provisions of the plan until the parties formally inform this court that they intend to modify the plan. If the parties agree in writing to modify the plan, at that time this court will permit the parties to negotiate a modification or draft a new plan. However, the parties must inform this court in writing of any intention to deviate from this plan. Efforts by either party to circumvent this plan or render it unworkable shall be subject to the contempt powers of this court.

FMC is a major corporate entity that has a legal and moral obligation to fairly serve the employment needs of the Indian residents of the Fort Hall Reservation as reasoned by this court in its opinion of May 19, 1988. More importantly, it has a commonsense obligation to promote community harmony in the areas where its work sites are located. In this instance, that obligation is being ignored and that attitude appears to be an origin of racial tensions both on and off the Fort Hall Reservation. Such tensions are unhealthy for the communities involved, impacting negatively upon the growing minds of children exposed.

The tribal government of the Fort Hall Reservation has a duty to protect the basic rights and interests of everyone within its territorial boundaries. This includes the duty to seek employment opportunities from firms doing business on the reservation for unemployed Indians who live on or near the Fort Hall Reservation. The enactment of the Tribal Employment Rights Ordinance (TERO) is the tribal government's effort to perform that duty. The compliance plan provision of the ordinance seeks to fairly apply its mandate to reservation employers.

The parties to this litigation mutually agreed at one point that the TERO was too harsh for a fair regulation of appellant's employment policies and practices concerning Indian hires. They decided to negotiate a workable compliance plan. Unfortunately the plan failed its purpose, resulting in this litigation.

Since the parties are unable to resolve their differences in this matter, this court binds the parties to the compliance plan set forth below.

FMC Compliance Plan

Indian Preference

FMC shall give preference to Indians for 75 percent of the initial hires and for 75 percent of the vacancies, regardless of level, where positions are not covered by, or cannot be filled pursuant to, the terms of FMC's collective bargaining agreement. This shall include vacancies in the positions not subject to a collective bargaining agreement and vacancies subject to a collective bargaining agreement for which there are no qualified employees to exercise their promotion rights under a collective bargaining agreement. Before filling any position with a non-Indian, FMC shall give the TERO office no less than three days to locate and refer a qualified local Indian. In emergency situations, FMC may request that the TERO office have less than three days; the TERO office shall liberally grant such requests. The TERO office shall recruit Indians who reside on or near the Fort Hall Reservation. Recruitment efforts to other reservations and other states shall stand outside the mandate of this plan.

Promotions

Local Indians shall be given preference for all positions in which the provision of such preference will not be in conflict with a collective bargaining agreement to which FMC is a party.

Training of Indians

For internal training programs conducted by FMC, one out of every three trainees shall be a local Indian if qualified Indian trainees are available. In addition, FMC shall assist the TERO office to establish a training program that will enable local Indians to prepare for employment with FMC. This program shall utilize any existing tribal training office and shall include local institutions of higher learning such as Idaho State University. These training efforts shall have the goal of preparing local Indians for projected vacancies at non-entry level positions for which FMC anticipates hiring from outside its existing workforce or will be open for bid internally where seniority is not the only determining factor. Each year, FMC shall project the vacancies for the coming three-year period in an effort to determine vacancies it will not be able to fill from its existing workforce, and then shall develop a comprehensive plan to train local Indians for such positions. When they are available, FMC shall place no less than 10 Indian graduates from the training program each year in vacancies at FMC. First preference among local Indians shall go to those who were laid off because of the closing of the Gay Mine and those on FMC's temporary recall list. FMC shall bear the cost of such training programs. However, some costs may be spread by persuading the Bureau of Indian Affairs to participate in this vocational training program.

Pre-Employment Screening and Orientation

With assistance from FMC, the TERO office shall screen employees referred to FMC to ensure that they qualify for the positions of the referral. In addition, the TERO office shall give all FMC referrals a work orientation to afford them the best opportunity for job success.

Counseling

Whenever FMC has determined that a local Indian employee referred by the TERO office is not performing adequately and is in danger of being dismissed, it shall notify the TERO office about the problem. The TERO office shall: immediately provide job counseling to that employee. FMC agrees not to terminate any Indian employee until the TERO office has been given an opportunity to provide such counseling, unless immediate termination is determined by management to be necessary.

Community Education

The TERO office with the assistance of FMC shall develop and deliver community education programs on the Fort Hall Reservation which explain the preference program and the opportunities it makes available to tribal members. The programs shall emphasize that preference requires qualified corkers who will perform satisfactorily on the job. The intent of this plan is to identify local Indians who have a real interest in gaining the skills necessary to become effective members of appellant's workforce. Employment opportunities may be provided but hard work is determinative of employment success.

High School Presentations

FMC and the TERO office shall make presentations at the local high schools about the opportunities available at FMC. They shall identify Indian students interested in working at FMC and offer them career counseling, summer jobs at FMC and other assistance to encourage Indian high school students to consider careers at FMC's operation at Fort Hall

TERO Fee

FMC shall pay a TERO fee in an amount equal to one-half of one percent of its total annual payroll minus that portion of the payroll paid to Indian employees.

Non-Compliance

The spirit of this plan is to afford employment opportunities to Indians who reside on or near the Fort Hall Reservation where the unemployment rate soars far beyond that of the general Pocatello area. The resources exploited from the Fort Hall Reservation by appellant and its contractors amount to enormous economic gain to off-reservation interests. Aside from the TERO and its application herein and the jurisdictional determination made by this court, there is a profound human interest obligation here that is incumbent upon FMC to honor this compliance plan. To do otherwise is not honorable.

If the TERO office has good cause to believe that FMC has seriously violated any requirement of this compliance plan it shall notify FMC and shall seek to resolve the alleged violation through negotiations and other cooperative methods. If such efforts fail, this court shall impose appropriate sanctions

In conformance with the assessments made herein,

This order and compliance plan are hereby entered on this 10th day of October 1988.