/>iOn July 30, 2025, Acting General Counsel of the National Labor Relations Board (“NLRB”) William B. Cowen (“Cowen”) issued a General Counsel memorandum providing guidance to the NLRB’s Regional Directors on addressing jurisdictional issues between the NLRB and the National Mediation Board (“NMB”). The memorandum, GC 25-09, criticizes NLRB Regional Directors’ recent practice of resolving unclear jurisdictional questions themselves in favor of NLRB jurisdiction and instructs them to instead refer such issues to the NMB.
The NLRB has exclusive authority under the National Labor Relations Act (“NLRA”) to oversee and regulate labor practices in most of the private sector, with the exception of United States rail and air carriers, and certain enterprises under the control of these carriers. The NMB has exclusive authority to oversee and regulate labor practices concerning such carriers under the Railway Labor Act (“RLA”). Examples of carriers covered by the RLA include freight railroads, passenger railroads, freight airlines, and/or passenger airlines, together with employers that are directly or indirectly controlled by such carriers and perform services related to transportation of freight or passengers. The NLRB’s jurisdiction under the NLRA is mutually exclusive of the NMB’s jurisdiction under the RLA, as Section 2(2) of the NLRA excludes from the definition of employer “any person subject to the Railway Labor Act.”
GC 25-09 concerns cases in which a dispute arises as to which of the two agencies, the NLRB or the NMB, may properly assert jurisdiction. Cowen explains in GC 25-09 that, historically, the NLRB’s policy has been to refer jurisdictional questions concerning the RLA to the NMB because it has exclusive authority to determine its own jurisdiction. The NLRB’s Regional Directors are instructed by the NLRB’s Casehandling Manual to continue processing cases where the NLRB “clearly” has jurisdiction and to dismiss and refer to the NMB cases where the NMB “clearly” has jurisdiction. For cases where jurisdiction is unclear, Regional Directors are instructed to refer the case to the NMB for an advisory opinion on the jurisdictional question.
However, Cowen observes in the memorandum that Regional Directors have recently failed to follow this procedure. Rather, in situations concerning arguable or doubtful jurisdiction of the NLRB, Regional Directors have simply decided the jurisdictional question themselves without referring it to the NMB for an advisory opinion. The Acting General Counsel criticized this practice, explaining that it “fails to respect the significant role of the RLA in maintaining stability in the transportation industry.” He further emphasized that the purpose of the RLA is to protect the transportation industry from interruptions to commerce, a goal which is undermined when the RLA’s “statutory processes are usurped by reflexive decisions to assert jurisdiction under the NLRA.” To correct this issue, GC 25-09 instructs Regional Directors handling cases in which jurisdiction is unclear to hold any such case in abeyance and submit it for referral to the NMB.
Cowen’s guidance in GC 25-09 follows a May 2025 Fifth Circuit Court of Appeals decision granting a joint request made by the NLRB and Space Exploration Technologies Corp. (“SpaceX”) to modify a lower court injunction to permit the NLRB to request an advisory opinion from the NMB as to whether SpaceX is covered by the RLA. The lawsuit, which arose from the NLRB’s prosecution of an unfair labor practice charge against SpaceX, concerns SpaceX’s constitutional challenge to the structure of the NLRB, including NLRB Members’ removal protections. SpaceX asserted in a 2024 motion to dismiss in the underlying administrative action that the NLRB did not have jurisdiction over SpaceX because it is an air carrier under the RLA due to the fact that it provides space cargo transport and human spaceflight. The NLRB, at the time led by former General Counsel Jennifer Abruzzo, opposed SpaceX’s motion and declined to refer the case to the NMB for an advisory opinion.
On March 6, 2025, SpaceX sent a letter to Cowen, asking him to reconsider whether the NLRA applies to the company. Shortly thereafter, SpaceX and the NLRB submitted a joint request to the Fifth Circuit Court of Appeals to modify the injunction that was entered in the lower court action to permit the NLRB to refer SpaceX’s jurisdictional question to the NMB for an advisory opinion. The court granted the joint motion in May 2025, halting the case while the NMB determines whether it has jurisdiction over SpaceX.
The changes outlined in GC 25-09 have potentially significant practical implications for employers, particularly those in the transportation sector. Employers should pay close attention to how the NLRB and NMB handle these close-call jurisdictional questions to understand how the respective agencies’ jurisdictional limits may apply to them and ensure compliance with the appropriate agency’s regulations.
