In September 2005, the National Labor Relations Board (NLRB) issued a fi nal decision of its earlier case exercising jurisdiction over an unfair labor complaint fi led by a labor union against the San Manuel Band of Mission Indians (the Tribe) relating to its casino operations. In National Labor Relations Board v. San Manuel Band of Serrano Mission Indians, the NLRB determined it had jurisdiction under the National Labor Relations Act (the Act) because there is no tribal exemption in the Act and because principles of federal Indian law and policy do not preclude the Act being applied. The NLRB based its decision on three factors: 1) whether the Tribe is fulfi lling traditionally tribal or governmental functions; 2) whether these functions “involve” non-Indians or affect interstate commerce; and 3) whether the activity takes place on or off a Tribe’s reservation. The NLRB concluded that jurisdiction in this case was appropriate because the casino is a “typical commercial enterprise” that employs non-Indians and caters to non-Indian customers and, therefore, its decision to exercise jurisdiction is appropriate.

On appeal, in February 2007, the U.S. Court of Appeals for the D.C. Circuit denied the petition for review fi led by the Tribe (see San Manuel Band of Serrano Mission Indians v. National Labor Relations Board et al.). In so doing, the appeals court upheld the NLRB’s conclusion that the Act is applicable because the Tribe’s casino is a “purely commercial enterprise” that “employs signifi cant numbers of non-Indians” and “caters to a non-Indian clientele that lives off the reservation.” The Tribe’s motion to reconsider the case was denied in June 2007, and the Tribe is considering an appeal of the decision to the U.S. Supreme Court.

In the wake of the San Manuel decision, organized labor has begun an aggressive campaign to unionize casinos and resorts owned and managed by Indian Tribes. On November 26, 2007, in an action monitored by the NLRB, the United Auto Workers won a vote by dealers to organize a union at the Mashantucket Pequot’s Foxwoods Resort Casino in Connecticut. A month later, on December 16, 2007, the housekeeping staff of the Saginaw Chippewa Tribe’s Soaring Eagle Casino rejected a bid by the Teamsters Union by a two-to-one margin.