Labor & Employment Law Daily Wrap Up, NLRB NEWS—Memo provides guidance for referring cases to the National Mediation Board, (Jul 31, 2025)

By Brandi O. Brown, J.D.

When in doubt about whether an employer is within NLRA jurisdiction, Regions are told to submit the matter for referral to the NMB.

In a new memorandum instructing how regions should address jurisdictional issues relating to whether employers are covered by the Railway Labor Act (RLA) or the NLRA, Acting General Counsel William Cowen sets out a bright-line rule that if in doubt, they should submit the referral to the National Mediation Board for its opinion. Cowen tells Regions that when they are investigating an unfair labor practice charge or representation petition and find themselves faced with “arguments or evidence revealing a question as to whether an employer is within NLRA jurisdiction,” they “will forthwith submit the matter for referral to the NMB for an advisory opinion consistent with internal guidelines.”

Few referrals of late. While noting that, historically, the Board has followed a policy of referring jurisdictional questions regarding the RLA to the NMB, the memo contends that recently “almost no cases of questionable jurisdiction have been referred” and that, instead, when the jurisdictional question is in doubt or arguable, the Regions themselves have made the call. “This approach fails to respect the significant role of the RLA in maintaining stability in the transportation industry.”

Protection of commerce. While the RLA and NLRA “share similar purposes” the RLA, the memo states, “seeks to protect the transportation industry from “any interruption to commerce,”[] through highly structured bargaining and dispute resolution processes governed by the NMB.” (Footnotes omitted.) “When the RLA’s statutory processes are usurped by reflexive decisions to assert jurisdiction under the NLRA,” Cowen contends, “our shared purposes of industrial stability, the free flow of commerce, and employee free choice are hindered or thwarted.”

Difficult questions should go to Advice. The bottom line is that a “Region investigating a case in which jurisdiction is unclear should hold the case in abeyance and submit it for referral to the NMB” and, in cases that present “difficult questions or unique circumstances,” those should be submitted to Advice.

News: LaborNews AgencyNews Labor GCNNews