Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNION PACIFIC RAILROAD CO. v. BROTHERHOOD
OF LOCOMOTIVE ENGINEERS AND TRAINMEN
GENERAL COMMITTEE OF ADJUSTMENT,
CENTRAL REGION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 08–604. Argued October 7, 2009—Decided December 8, 2009
The Railway Labor Act (RLA or Act) was enacted to promote peaceful
and efficient resolution of labor disputes. As amended, the Act man
dates arbitration of “minor disputes” before panels composed of two
representatives of labor and two of industry, with a neutral referee as
tiebreaker. Union Pacific R. Co. v. Price, 360 U. S. 601, 610–613. To
supply arbitrators, Congress established the National Railroad Ad
justment Board (NRAB or Board), a board of 34 private persons rep
resenting labor and industry in equal numbers. 45 U. S. C. §153First (a). Before resorting to arbitration, employees and carriers
must exhaust the grievance procedures in their collective-bargaining
agreement (hereinafter CBA), see §153 First (i), a stage known as
“on-property” proceedings. As a final prearbitration step, the parties
must attempt settlement “in conference” between representatives of
the carrier and the grievant-employee. §152 Second, Sixth. The RLA
contains instructions concerning the place and time of conferences,
but does not “supersede the provisions of any agreement (as to con
ferences) . . . between the parties,” §152 Sixth; in common practice
the conference may be as informal as a telephone conversation. If the
parties fail to achieve resolution, either may refer the matter to the
NRAB. §153 First (i). Submissions to the Board must include “a full
statement of the facts and all supporting data bearing upon the dis
putes.” Ibid. Parties may seek court review of an NRAB panel order
on one or more stated grounds: “failure . . . to comply with the re
quirements of [the RLA], . . . failure of the order to conform, or con
2 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Syllabus
fine itself, to matters within the scope of the division’s jurisdiction, or
. . . fraud or corruption by a member of the division making the or
der.” §153 First (q). Courts of Appeals have divided on whether, in
addition to the statutory grounds for judicial review stated in §153
First (q), courts may review NRAB proceedings for due process viola
tions.
After petitioner Union Pacific Railroad Co. (hereinafter Carrier)
charged five of its employees with disciplinary violations, their union
(hereinafter Union) initiated grievance proceedings pursuant to the
CBA. The Union asserts that the parties conferenced all five dis
putes and the Carrier concedes that they conferenced at least two.
Dissatisfied with the outcome of the on-property proceedings, the Un
ion sought arbitration before the NRAB’s First Division. Both parties
filed submissions in the five cases, but neither mentioned conferenc
ing as a disputed matter. Yet, in each case, both parties necessarily
knew whether the Union and the Carrier had conferred; and the
Board’s governing rule, published in Circular One, which prescribes
Board procedures, instructs carriers and employees to “set forth all
relevant, argumentative facts,” 29 CFR §301.5(d), (e). Just prior to
the hearing, one of the arbitration panel’s industry representatives
objected, sua sponte, that the on-property record included no proof of
conferencing. The Carrier thereafter embraced that objection. The
referee allowed the Union to submit evidence of conferencing. The
Union did so, but it maintained that the proof-of-conferencing issue
was untimely raised, indeed forfeited, as the Carrier had not objected
before the date set for argument. The panel, in five identical deci
sions, dismissed the petitions for want of jurisdiction. The record
could not be supplemented to meet the no-proof-of-conferencing objec
tion, the panel reasoned, for as an appellate tribunal, the panel was
not empowered to consider de novo evidence and arguments. The Un
ion sought review in the Federal District Court, which affirmed the
Board’s decision. On appeal, the Seventh Circuit observed that the
“single question” at issue was whether written documentation of the
conference in the on-property record was a necessary prerequisite to
NRAB arbitration, and determined that there was no such prerequi
site in the statute or rules. But instead of resting its decision on the
Union’s primary, statute-based argument—that the panel erred in
ruling that it lacked jurisdiction over the cases—it reversed on the
ground that the NRAB’s proceedings were incompatible with due
process.
Held:
1. The Seventh Circuit erred in resolving the Union’s appeal under
a constitutional, rather than a statutory, headline. This Court
granted certiorari to address whether NRAB orders may be set aside
Cite as: 558 U. S. ____ (2009) 3
Syllabus
for failure to comply with due process notwithstanding §153 First
(q)’s limited grounds for review. But so long as a respondent does not
“seek to modify the judgment below,” true here, the respondent may
“rely upon any matter appearing in the record in support of the
judgment.” Blum v. Bacon, 457 U. S. 132, 137, n. 5. The Seventh
Circuit understood that the Union had pressed “statutory and consti
tutional” arguments, but observed that both arguments homed in on
a “single question”: is written documentation of the conference in the
on-property record a necessary prerequisite to NRAB arbitration?
Answering this “single question” in the negative, the Seventh Circuit
effectively resolved the Union’s core complaint. Because nothing in
the Act elevates to jurisdictional status the obligation to conference
minor disputes or to prove conferencing, a negative answer to the
“single question” leaves no doubt about the Union’s entitlement, in
accord with §153 First (q), to vacation of the Board’s orders. Given
this statutory ground for relief, there is no due process issue alive in
this case, and no warrant to answer a question that may be conse
quential in another case. Nevertheless, the grant of certiorari here
enables this Court to reduce confusion, clouding court as well as
Board decisions, over matters properly typed “jurisdictional.” Pp. 10–
12.
2. Congress authorized the Board to prescribe rules for presenting
and processing claims, §153 First (v), but Congress alone controls the
Board’s jurisdiction. By refusing to adjudicate the instant cases on
the false premise that it lacked “jurisdiction” to hear them, the NRAB
panel failed “to conform, or confine itself, to matters [Congress
placed] within the scope of [NRAB] jurisdiction,” §153 First (q).
Pp. 12–17.
(a) Not all mandatory “prescriptions, however emphatic, ‘are . . .
properly typed “jurisdictional.” ’ ” Arbaugh v. Y & H Corp., 546 U. S.
500, 510. Subject-matter jurisdiction properly comprehended refers
to a tribunal’s “ ‘power to hear a case,’ ” and “ ‘can never be forfeited or
waived.’ ” Id., at 514. In contrast, a “claim-processing rule” does not
reduce a tribunal’s adjudicatory domain and is ordinarily “forfeited if
the party asserting the rule waits too long to raise the point.” Kon
trick v. Ryan, 540 U. S. 443, 456. For example, this Court has held
nonjurisdictional and forfeitable the provision in Title VII of the Civil
Rights Act of 1964 requiring complainants to file a timely discrimina
tion charge with the Equal Employment Opportunity Commission
(EEOC) before proceeding to court, Zipes v. Trans World Airlines,
Inc., 455 U. S. 385, 393. In contrast, the Court has reaffirmed the ju
risdictional character of 28 U. S. C. §2107(a)’s time limitation for fil
ing a notice of appeal. Bowles v. Russell, 551 U. S. 205, 209–211.
Here, the requirement that parties to minor disputes, as a last
4 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Syllabus
chance prearbitration, attempt settlement “in conference,” is imposed
on carriers and grievants alike, but satisfaction of that obligation
does not condition the Board’s adjudicatory authority, which extends
to “all disputes between carriers and their employees ‘growing out of
grievances or out of the interpretation or application of agreements
concerning rates of pay, rules, or working conditions . . . ,’ ” Slocum v.
Delaware, L. & W. R. Co., 339 U. S. 239, 240 (quoting §153 First (i)).
When a CBA’s grievance procedure has not been followed, resort to
the Board would ordinarily be objectionable as premature, but the
conference requirement is independent of the CBA process. Rooted in
§152, the RLA’s “[g]eneral duties” section, and not moored to the
NRAB’s “[e]stablishment[,] . . . powers[,] and duties” set out in §153
First, conferencing is often informal in practice, and is no more “ju
risdictional” than is the presuit resort to the EEOC held nonjurisdic
tional and forfeitable in Zipes. And if the conference requirement is
not “jurisdictional,” then failure initially to submit proof of conferenc
ing cannot be of that genre. And although the Carrier alleges that
NRAB decisions support characterizing conferencing as jurisdic
tional, if the NRAB lacks authority to define its panels’ jurisdiction,
surely the panels themselves lack that authority. Furthermore,
NRAB panels have variously addressed the matter. Pp. 12–15.
(b) Neither the RLA nor Circular One could plausibly be read to
require, as a prerequisite to the NRAB’s exercise of jurisdiction, sub
mission of proof of conferencing. Instructions on party submissions
are claim-processing, not jurisdictional, rules. The Board itself has
recognized that conferencing may not be a “question in dispute,” and
when that is so, proof thereof need not accompany party submissions.
It makes sense to exclude at the arbitration stage newly presented
“data” supporting the employee’s grievance, 29 CFR §301(d)—
evidence the carrier had no opportunity to consider prearbitration.
But conferencing is not a fact bearing on the merits of a grievance.
Moreover, the RLA respects the parties’ right to order for themselves
the conference procedures they will follow. See 45 U. S. C. §152Sixth. Pp. 16–17.
522 F. 3d 746, affirmed.
GINSBURG, J., delivered the opinion for a unanimous Court.
Cite as: 558 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–604
_________________
UNION PACIFIC RAILROAD COMPANY, PETITIONER
v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS
AND TRAINMEN GENERAL COMMITTEE OF
ADJUSTMENT, CENTRAL REGION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[December 8, 2009]
JUSTICE GINSBURG delivered the opinion of the Court.
“It is most true that this Court will not take jurisdiction
if it should not,” Chief Justice Marshall famously wrote,
“but it is equally true, that it must take jurisdiction if it
should. . . . We have no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is
not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821);
see Marshall v. Marshall, 547 U. S. 293, 298–299 (2006).
While Chief Justice Marshall’s statement bears “fine
tuning,” there is surely a starting presumption that when
jurisdiction is conferred, a court may not decline to exer­
cise it. See R. Fallon, J. Manning, D. Meltzer, & D.
Shapiro, Hart & Wechsler’s The Federal Courts and the
Federal System 1061–1062 (6th ed. 2009). The general
rule applicable to courts also holds for administrative
agencies directed by Congress to adjudicate particular
controversies.
Congress vested in the National Railroad Adjustment
Board (hereinafter NRAB or Board) jurisdiction to adjudi­
2 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Opinion of the Court
cate grievances of railroad employees that remain unset­
tled after pursuit of internal procedures. 45 U. S. C. §153First (h), (i). We consider in this case five nearly identical
decisions of a panel of the NRAB dismissing employee
claims “for lack of jurisdiction.” NRAB First Div. Award
No. 26089 etc. (Mar. 15, 2005), App. to Pet. for Cert.
65a–107a, 69a (hereinafter Panel Decision). In each case,
the panel declared that a procedural rule raised by a
panel member, unprompted by the parties, was “jurisdic­
tional” in character and therefore commanded threshold
dismissal.
The panel’s characterization, we hold, was misconceived.
Congress authorized the Board to prescribe rules for the
presentation and processing of claims, §153 First (v), but
Congress alone controls the Board’s jurisdiction. By pre­
suming authority to declare procedural rules “jurisdic­
tional,” the panel failed “to conform, or confine itself, to
matters [Congress placed] within the scope of [NRAB]
jurisdiction,” §153 First (q). Because the panel was not
“without authority to assume jurisdiction over the [em­
ployees’] claim[s],” Panel Decision 72a, its dismissals
lacked tenable grounding. We therefore affirm the judg­
ment of the Seventh Circuit setting aside the panel’s
orders.
I
A
Concerned that labor disputes would lead to strikes
bringing railroads to a halt, Congress enacted the Railway
Labor Act (RLA or Act), 44 Stat. 577, as amended, 45
U. S. C. §151 et seq., in 1926 to promote peaceful and
efficient resolution of those disputes. See Union Pacific R.
Co. v. Price, 360 U. S. 601, 609 (1959); §151a. The Act
instructs labor and industry “to exert every reasonable
effort to make and maintain agreements concerning rates
of pay, rules, and working conditions, and to settle all
Cite as: 558 U. S. ____ (2009) 3
Opinion of the Court
disputes, whether arising out of the application of such
agreements or otherwise, in order to avoid any interrup­
tion to commerce or to the operation of any carrier . . . .”
§152 First; see Trainmen v. Jacksonville Terminal Co.,
394 U. S. 369, 377–378 (1969) (describing obligation to
pursue agreement as the “heart of the [RLA]”). As part of
its endeavor, Congress provided a framework for the
settlement and voluntary arbitration of “minor disputes.”
See Price, 360 U. S., at 609–610. (In the railroad industry,
the term “minor disputes” means, primarily, “grievances
arising from the application of collective bargaining
agreements to particular situations.” Id., at 609.)1
Many railroads, however, resisted voluntary arbitration.
See id., at 610. Congress therefore amended the Act in
1934 (1934 Amendment) to mandate arbitration of minor
disputes; under the altered scheme, arbitration occurs
before panels composed of two representatives of labor and
two of industry, with a neutral referee serving as tie­
breaker. See id., at 610–613. To supply the representa­
tive arbitrators, Congress established the NRAB, a board
of 34 private persons representing labor and industry in
equal numbers. §153 First (a); see Trainmen v. Chicago R.
& I. R. Co., 353 U. S. 30, 36–37 (1957).2 Neutral referees,
the RLA provides, shall be appointed by the representa­
tive arbitrators or, failing their agreement, by the Na­
tional Mediation Board. §153 First (l). The 1934 Amend­
ment authorized the NRAB to adopt, at a one-time session
in 1934, “such rules as it deems necessary to control pro­
——————
1 In contrast to minor disputes, which assume “the existence of a
collective agreement,” major disputes are those “over the formation of
collective agreements or efforts to secure them. . . . They look to the
acquisition of rights for the future, not to assertion of rights claimed to
have vested in the past.” Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711,
723 (1945).
2 The RLA divides the NRAB into four Divisions, each covering speci­
fied classes of railroad employees. §153 First (h).
4 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Opinion of the Court
ceedings,” §153 First (v); the product of that rulemaking,
codified at 29 CFR pt. 301 (2009), is known as Circular
One.
In keeping with Congress’ aim to promote peaceful
settlement of minor disputes, the RLA requires employees
and carriers, before resorting to arbitration, to exhaust the
grievance procedures specified in the collective-bargaining
agreement (hereinafter CBA). See 45 U. S. C. §153 First
(i). This stage of the dispute-resolution process is known
as “on-property” proceedings. As a final prearbitration
step, the Act directs parties to attempt settlement “in
conference” between designated representatives of the
carrier and the grievant-employee. §152 Second, Sixth.3
The RLA contains instructions concerning the place and
time of conferences, but specifies that the statute does not
——————
3 Central to the instant controversy, §152 Second, Sixth read, in full:
“Second. Consideration of disputes by representatives.
All disputes between a carrier or carriers and its or their employees
shall be considered, and, if possible, decided, with all expedition, in
conference between representatives designated and authorized so to
confer, respectively, by the carrier or carriers and by the employees
thereof interested in the dispute.”
“Sixth. Conference of representatives; time; place; private agree­
ments.
In case of a dispute between a carrier or carriers and its or their
employees, arising out of grievances or out of the interpretation or
application of agreements concerning rates of pay, rules, or working
conditions, it shall be the duty of the designated representative or
representatives of such carrier or carriers and of such employees,
within ten days after the receipt of notice of a desire on the part of
either party to confer in respect to such dispute, to specify a time and
place at which such conference shall be held: Provided, (1) That the
place so specified shall be situated upon the line of the carrier involved
or as otherwise mutually agreed upon; and (2) that the time so specified
shall allow the designated conferees reasonable opportunity to reach
such place of conference, but shall not exceed twenty days from the
receipt of such notice: And provided further, That nothing in this
chapter shall be construed to supersede the provisions of any agree­
ment (as to conferences) then in effect between the parties.”
Cite as: 558 U. S. ____ (2009) 5
Opinion of the Court
“supersede the provisions of any agreement (as to confer­
ences) . . . in effect between the parties,” §152 Sixth; it is
undisputed that in common practice the conference may
be as informal as a telephone conversation.
If the parties fail to achieve resolution “in the usual
manner up to and including the chief operating officer of
the carrier designated to handle [minor] disputes,” either
party may refer the matter to the NRAB. §153 First (i).
Submissions to the Board must include “a full statement
of the facts and all supporting data bearing upon the
disputes.” Ibid.; see 29 CFR §301.5(d), (e) (submissions
“must clearly and briefly set forth all relevant, argumen­
tative facts, including all documentary evidence”). Arbi­
tration is launched when the party referring the dispute
files a notice of intent with the NRAB; after Board ac­
knowledgment of the notice, the parties have 75 days to
file simultaneous submissions. NRAB, Uniform Rules of
Procedure (rev. June 23, 2003).
In creating the scheme of mandatory arbitration super­
intended by the NRAB, the 1934 Amendment largely
“foreclose[d] litigation” over minor disputes. Price, 360
U. S., at 616; see Railway Conductors v. Pitney, 326 U. S.
561, 566 (1946) (“Not only has Congress . . . designated an
agency peculiarly competent to handle [minor disputes],
but . . . it also intended to leave a minimum responsibility
to the courts.”). Congress did provide that an employee
who obtained a monetary award against a carrier could
sue to enforce it, and the court could either enforce the
award or set it aside. Price, 360 U. S., at 616; 45 U. S. C.
§153 First (p) (1934 ed.). In addition to that limited role,
some Courts of Appeals, we noted in Price, reviewed
awards “claimed to result from a denial of due process of
law.” 360 U. S., at 616 (citing Ellerd v. Southern Pacific
R. Co., 241 F. 2d 541 (CA7 1957); Barnett v. Pennsylvania-
Reading Seashore Lines, 245 F. 2d 579, 582 (CA3 1957)).
In 1966, Congress again amended the scheme, this time
6 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Opinion of the Court
to state grounds on which both employees and railroads
could seek judicial review of NRAB orders. The governing
provision, still in force, allows parties aggrieved by an
NRAB panel order to petition for court review. 45 U. S. C.
§153 First (q) (2006 ed.). The provision instructs that
“[o]n such review, the findings and order of the divi­
sion shall be conclusive on the parties, except that the
order . . . may be set aside, in whole or in part, or re­
manded . . . , for failure of the division to comply with
the requirements of [the RLA], for failure of the order
to conform, or confine itself, to matters within the
scope of the division’s jurisdiction, or for fraud or
corruption by a member of the division making the
order.”
Courts of Appeals have divided on whether this provision
precludes judicial review of NRAB proceedings for due
process violations. Compare, e.g., Shaffi v. PLC British
Airways, 22 F. 3d 59, 64 (CA2 1994) (review available),
and Edelman v. Western Airlines, Inc., 892 F. 2d 839, 847
(CA9 1989) (same), with Kinross v. Utah R. Co., 362 F. 3d
658, 662 (CA10 2004) (review precluded).4
——————
4 The disagreement stems from this Court’s per curiam opinion in
Union Pacific R. Co. v. Sheehan, 439 U. S. 89 (1978). That case in­
volved an NRAB decision turning on a time limitation contained in the
governing CBA. Based on that limitation, the Board dismissed an
employee’s claim. The Tenth Circuit remanded the case to the NRAB
on the ground that the Board had failed to consider the employee’s
equitable tolling argument and thereby violated due process. We
summarily reversed, observing that the Board had in fact considered
the plea for equitable tolling and explicitly rejected it. Id., at 92. We
added that if the Court of Appeals “intended to reverse the [NRAB’s]
rejection of [the employee’s] equitable tolling argument,” then the court
had exceeded the bounds §153 First (q) placed on its review authority.
Id., at 93. In determining whether the CBA’s time limitation was
tolled, we said, the Board “certainly was acting within its jurisdiction
and in conformity with . . . the Act.” Ibid.
Cite as: 558 U. S. ____ (2009)
7
Opinion of the Court
B
The instant matter arose when petitioner Union Pacific
Railroad Co. (hereinafter Carrier) charged five of its em­
ployees with disciplinary violations. Their union, the
Brotherhood of Locomotive Engineers and Trainmen
(hereinafter Union), initiated grievance proceedings pur­
suant to the CBA. The Union asserts that, following
exhaustion of grievance proceedings, the parties confer­
enced all the disputes; counsel for the Carrier conceded at
argument that at least two of the disputes were confer­
enced, Tr. of Oral Arg. 7. Dissatisfied with the outcome of
the on-property proceedings, the Union sought arbitration
before the First Division of the NRAB. The Union and the
Carrier, from early 2002 through 2003, filed simultaneous
submissions in the five cases. In each submission, the
Union included the notice of discipline (or discharge), the
hearing transcript, and all exhibits and evidence relating
to the underlying adverse actions used in the grievance
proceeding. Neither party mentioned conferencing as a
disputed matter. Yet, in each case, both parties necessar­
ily knew whether the Union and the Carrier had con­
ferred, and the Board’s governing rule instructs carriers
and employees to “set forth all relevant, argumentative
facts,” 29 CFR §301.5(d), (e).
On March 18, 2004, just prior to the hearing on the
employees’ claims, one of the industry representatives on
the arbitration panel raised an objection. Petition to
Review and Vacate Awards and Orders of First Div.
NRAB in No. 05–civ–2401 (ND Ill.), ¶20 (hereinafter Pet.
to Review). On his own initiative, unprompted by the
Carrier, and in executive session, the industry representa­
tive asserted that the on-property record included no proof
of conferencing. See ibid. The Carrier thereafter em­
braced the panel member’s objection. The neutral referee
informed the Union of the issue and adjourned the hear­
ing, allowing the Union “to submit evidence that confer­
8 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Opinion of the Court
encing had in fact occurred.” See id., ¶¶21–23. The Union
did so, offering phone logs, handwritten notes, and corre­
spondence between the parties as evidence of conferencing
in each of the five cases. E.g., Panel Decision 67a–68a.
From its first notice of the objection, however, the Union
maintained that the proof-of-conferencing issue was un­
timely raised, indeed forfeited, as the Carrier itself had
not objected prior to the date set for argument of the cases.
E.g., id., at 67a; Pet. to Review ¶¶22, 29, 30, 54.
On March 15, 2005, nearly one year after the question of
conferencing first arose, the panel, in five identical deci­
sions, dismissed the petitions for want of “authority to
assume jurisdiction over the claim[s].” Panel Decision
72a. Citing Circular One, see supra, at 3–4, and “the
weight of arbitral precedent,” the panel stated that “the
evidentiary record” must be deemed “closed once a Notice
of Intent has been filed with the NRAB . . . .” Panel Deci­
sion 71a.5 In explaining why the record could not be sup­
plemented to meet the no-proof-of-conferencing objection,
the panel emphasized that it was “an appellate tribunal,
as opposed to one which is empowered to consider and rule
on de novo evidence and arguments.” Id., at 69a.
The two labor representatives dissented. The Carrier’s
submissions, they reasoned, took no exception based on
failure to conference or to prove conferencing; therefore,
they concluded, under a “well settled principle governing
the Board’s deliberations,” the Carrier had forfeited the
issue. Id., at 105a–106a. The dissenters urged that the
Union had furnished evidence showing “the cases had all
been conferenced, even though the relevant Collective
Bargaining Agreement [did] not require [conferencing].”
Id., at 105a. Dismissal of the claims, the dissenters
——————
5 The panel observed, however, that the records and notes offered by
the Union, “on their face, may be regarded as supportive of its position
that the conference[s] occurred.” Panel Decision 69a.
Cite as: 558 U. S. ____ (2009) 9
Opinion of the Court
charged, demonstrated “the kind of gamesmanship that
breeds contempt for the minor dispute process.” Id., at
107a.
The Union filed a petition for review in the United
States District Court for the Northern District of Illinois,
asking the court to set aside the Board’s orders on the
ground that the panel had “unlawfully held [it lacked]
authority to assume jurisdiction over [the] cases [absent]
evidence of a ‘conference’ between the parties in the . . .
‘on-property’ record.” Pet. to Review ¶1. Nothing in the
Act or the NRAB’s procedural rules, the Union main­
tained, mandated dismissal for failure to allege and prove
conferencing in the Union’s original submission. Id., ¶¶3,
4. By imposing, without warrant, “a technical pleading or
evidentiary requirement” and elevating it to jurisdictional
status, the Union charged, the panel had “egregiously
violate[d] the Act,” id., ¶3, or “fail[ed] to conform its juris­
diction to that required by . . . law,” id., ¶4. Alternatively,
the Union asserted that the panel violated procedural due
process by entertaining the Carrier’s untimely objection,
even though “the Carrier had failed to raise any objection
as to lack of conferencing” in its submissions. Id., ¶5.
The District Court affirmed the Board’s orders. Ad­
dressing the Union’s argument that the no-proof-of­
conferencing issue was untimely raised, the court accepted
the panel’s description of the issue as “jurisdictional,” and
noted the familiar proposition that jurisdictional chal­
lenges may be raised at any stage of the proceedings. 432
F. Supp. 2d 768, 777, and n. 7 (2006).
On appeal, the Seventh Circuit recognized that the
Union had presented its case “through both a statutory
and constitutional framework.” 522 F. 3d 746, 750 (2008).
The court observed, however, that “the essence of the
conflict boils down to a single question: is written docu­
mentation of the conference in the on-property record a
necessary prerequisite to arbitration before the NRAB?”
10 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Opinion of the Court
Ibid. It then determined that there was no such prerequi­
site: “[N]o statute, regulation, or CBA,” the court con­
cluded, “required the evidence [of conferencing] to be
presented in the on-property record.” Id., at 757–758. But
instead of resting its decision on the Union’s primary,
statute-based argument—that the panel erred in ruling
that it lacked jurisdiction over the cases—the Court of
Appeals reversed on the ground that the NRAB’s proceed­
ings were incompatible with due process. See id., at 750.
II
We granted the Carrier’s petition for certiorari, 555
U. S. ___ (2009), which asked us to determine whether a
reviewing court may set aside NRAB orders for failure to
comply with due process notwithstanding the limited
grounds for review specified in §153 First (q).6 As earlier
recounted, Courts of Appeals have divided on this issue.
See supra, at 6, and n. 4. Appearing as respondent in this
Court, however, the Union urged affirmance of the Sev­
enth Circuit’s judgment on an alternative ground. Reas­
serting the lead argument it had advanced in its petition
for court review, see supra, at 9, the Union maintained
that the Board did not “conform, or confine itself, to mat­
ters within the scope of [its] jurisdiction,” §153 First (q).
Brief for Respondent 52–53. In response, the Carrier
stated that the Union’s alternative ground “presents a
pure question of law that th[e] Court can and should
resolve without need for remand.” Reply Brief 24, n. 9.
We agree.
So long as a respondent does not “seek to modify the
judgment below,” true here, “[i]t is well accepted” that the
——————
6 Quoted supra, at 6, those grounds are “failure of the division to
comply with [RLA] requirements,” “failure of the order to conform, or
confine itself, to matters within the scope of the division’s jurisdiction,”
and “fraud or corruption by a member of the division making the
order.”
Cite as: 558 U. S. ____ (2009) 11
Opinion of the Court
respondent may, “without filing a cross-appeal or cross­
petition, . . . rely upon any matter appearing in the record
in support of the judgment.” Blum v. Bacon, 457 U. S.
132, 137, n. 5 (1982). The Seventh Circuit, as just ob­
served, see supra, at 9–10, understood that the Union had
pressed “statutory and constitutional” arguments, but also
comprehended that both arguments homed in on “a single
question: is written documentation of the conference in the
on-property record a necessary prerequisite to arbitration
before the NRAB?” 522 F. 3d, at 750. Answering this
“single question” in the negative, the Court of Appeals
effectively resolved the Union’s core complaint. But, for
reasons far from apparent, the court declared that “once
we answer the key question . . . , adjudication of the due
process claim is unavoidable.” Ibid.The Seventh Circuit, we agree, asked the right question,
but inappropriately placed its answer under a constitu­
tional, rather than a statutory, headline. As the Court of
Appeals determined, and as we discuss infra, at 12–17,
nothing in the Act elevates to jurisdictional status the
obligation to conference minor disputes or to prove confer­
encing. That being so, the “unavoidable” conclusion,
following from the Seventh Circuit’s “answer [to] the key
question,” 522 F. 3d, at 750, is that the panel, in §153
First (q)’s words, failed “to conform, or confine itself, to
matters within the scope of [its] jurisdiction.” The Carrier,
although it sought a different outcome, was quite right to
“urg[e] [the Court of Appeals] to consider the statutory
claim before the constitutional one.” 522 F. 3d, at 750.
In short, a negative answer to the “single question”
identified by the Court of Appeals leaves no doubt about
the Union’s entitlement, in accord with §153 First (q), to
vacation of the Board’s orders. Given this statutory
ground for relief, there is no due process issue alive in this
case, and no warrant to answer a question that may be
consequential in another case: Absent grounds specified in
12 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Opinion of the Court
§153 First (q) for vacating a Board order, may a reviewing
court set aside an NRAB adjudication for incompatibility
with due process? An answer to that question must await
a case in which the issue is genuinely in controversy.7 In
this case, however, our grant of certiorari enables us to
address a matter of some importance: We can reduce
confusion, clouding court as well as Board decisions, over
matters properly typed “jurisdictional.”
III
A
Recognizing that the word “jurisdiction” has been used
by courts, including this Court, to convey “many, too
many, meanings,” Steel Co. v. Citizens for Better Environ
ment, 523 U. S. 83, 90 (1998) (internal quotation marks
omitted), we have cautioned, in recent decisions, against
profligate use of the term. Not all mandatory “prescrip­
tions, however emphatic, are . . . properly typed jurisdic­
tional,” we explained in Arbaugh v. Y & H Corp., 546 U. S.
500, 510 (2006) (internal quotation marks omitted). Sub­
ject-matter jurisdiction properly comprehended, we em­
phasized, refers to a tribunal’s “power to hear a case,” a
matter that “can never be forfeited or waived.” Id., at 514(quoting United States v. Cotton, 535 U. S. 625, 630
(2002)). In contrast, a “claim-processing rule, . . . even if
unalterable on a party’s application,” does not reduce the
adjudicatory domain of a tribunal and is ordinarily “for­
feited if the party asserting the rule waits too long to raise
the point.” Kontrick v. Ryan, 540 U. S. 443, 456 (2004).
——————
7 A case of that order would be uncommon. As the Carrier acknowl­
edges, “many of the cases reviewing ostensibly extra-statutory due
process objections could have been accommodated within the statutory
framework.” Brief for Petitioner 36. See also id., at 37 (“The statutory
review provisions are plainly generous enough to permit litigants to
raise all of the simple, common, easily adjudicated, and likely to be
meritorious claims that sail under the flag of due process of law . . . .”).
Cite as: 558 U. S. ____ (2009) 13
Opinion of the Court
For example, we have held nonjurisdictional and forfeit­
able the provision in Title VII of the Civil Rights Act of
1964, 42 U. S. C. §2000e et seq., requiring complainants to
file a timely charge of discrimination with the Equal Em­
ployment Opportunity Commission (EEOC) before pro­
ceeding to court. Zipes v. Trans World Airlines, Inc., 455
U. S. 385, 393 (1982). We have also held nonjurisdictional
and forfeitable the Title VII provision exempting employ­
ers who engage fewer than 15 employees. Arbaugh, 546
U. S., at 503, 515–516. And we have determined that a
Chapter 7 trustee’s (or creditor’s) limited time to object to
the debtor’s discharge, see Fed. Rule Bkrtcy. Proc. 4004, is
a claim-processing, not a jurisdictional, matter. Kontrick,
540 U. S., at 446–447, 460. In contrast, relying on a long
line of this Court’s decisions left undisturbed by Congress,
we have reaffirmed the jurisdictional character of the time
limitation for filing a notice of appeal stated in 28 U. S. C.
§2107(a). Bowles v. Russell, 551 U. S. 205, 209–211
(2007). See also John R. Sand & Gravel Co. v. United
States, 552 U. S. 130, 132 (2008) (court must consider
sua sponte timeliness of lawsuit filed against the United
States in the Court of Federal Claims).
With these decisions in mind, we turn back to the re­
quirement that parties to minor disputes, as a last chance
prearbitration, attempt settlement “in conference,” 45
U. S. C. §152 Second, Sixth. See supra, at 4–5, and n. 3.
This obligation is imposed on carriers and grievants alike
but, we hold, its satisfaction does not condition the adjudi­
catory authority of the Board.
The Board’s jurisdiction extends to “all disputes between
carriers and their employees ‘growing out of grievances or
out of the interpretation or application of agreements
concerning rates of pay, rules, or working conditions . . . .’ ”
Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 240
(1950) (quoting §153 First (i)). True, the RLA instructs
that, before any reference to arbitration, the dispute “shall
14 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
TRAINMEN GEN. COMM. OF ADJUSTMENT
Opinion of the Court
be handled in the usual manner up to and including the
[designated] chief operating officer.” §153 First (i). And
when the CBA’s grievance procedure has not been fol­
lowed, resort to the Board would ordinarily be objection­
able as premature.
The additional requirement of a conference, we note, is
independent of the CBA process. Rather, the conference
requirement is stated in the “[g]eneral duties” section of
the RLA, §152, a section that is not moored to the
“[e]stablishment[,] . . . powers[,] and duties” of the NRAB
set out next in §153 First. Rooted in §152 and often in­
formal in practice, see supra, at 4–5, conferencing is surely
no more “jurisdictional” than is the presuit resort to the
EEOC held forfeitable in Zipes, 455 U. S., at 393.8 And if
the requirement to conference is not “jurisdictional,” then
failure initially to submit proof of conferencing cannot be
of that genre. See Part III–B, infra.
In defense of the Board’s characterization of conferenc­
ing and proof thereof as jurisdictional, the Carrier points
to the NRAB’s Circular One procedural regulations, see
supra, at 3–4, which provide: “No petition shall be consid­
ered by any division of the Board unless the subject mat­
ter has been handled in accordance with the provisions of
the [RLA].” 29 CFR §301.2(b). But that provision, as
other prescriptions in Circular One, is a claims-processing
rule. Congress gave the Board no authority to adopt rules
of jurisdictional dimension. See 45 U. S. C. §153 First (v)
(authorizing the NRAB to “adopt such rules as it deems
necessary to control proceedings before the respective
——————
8 The RLA states, in §152 First, a general duty “to settle all disputes,”
and, in §152 Second, a more specific duty to “conference.” These provi­
sions apply to all disputes in the railroad industry, major as well as
minor. They also apply to disputes in the airline industry, over which
the NRAB has no jurisdiction. §181. Neither provision “speak[s] in
jurisdictional terms or refer[s] in any way to the jurisdiction of the”
NRAB. Zipes, 455 U. S., at 394.
Cite as: 558 U. S. ____ (2009) 15
Opinion of the Court
divisions and not in conflict with the provisions of this
section”). And when the fact of conferencing is genuinely
contested, we see no reason why the panel could not ad­
journ the proceeding pending cure of any lapse. Circular
One does not exclude such a sensible solution.
The Carrier cites NRAB decisions that allegedly support
characterization of conferencing as jurisdictional. If the
NRAB lacks authority to define the jurisdiction of its
panels, however, surely the panels themselves lack that
authority. Furthermore, NRAB panels have variously
addressed the matter. For example, in NRAB Third Div.
Award No. 15880 (Oct. 26, 1967), the panel, although
characterizing the conferencing requirement as “jurisdic­
tional,” said that “[i]f one of the parties refuses or fails to
avail itself of a conference where there is an opportunity to
do so, it cannot then assert the defense of a lack of juris­
diction.” Id., at 2. See also NRAB Fourth Div. Award No.
5074 (June 21, 2001) (same); NRAB Third Div. Award No.
28147 (Oct. 16, 1989) (same). Cf. Arbaugh, 546 U. S., at
511 (“unrefined” uses of the word “jurisdiction” are enti­
tled to “no precedential effect” (internal quotation marks
omitted)). And in NRAB First Div. Award No. 23867, p. 5
(Apr. 7, 1988), the panel observed that the ordinary rem­
edy for lack of conferencing is to “dismiss th[e] claim with­
out prejudice to allow Claimant to cure the jurisdictional
defect.” That panel reached the merits nevertheless. Ibid.Cf. Steel Co., 523 U. S., at 94 (“Jurisdiction is power to
declare the law, and when it ceases to exist, the only
function remaining to the [tribunal] is that of announcing
the fact and dismissing the cause” (quoting Ex parte
McCardle, 7 Wall. 506, 514 (1869)).). We note, in addition,
the acknowledgment of the Carrier’s counsel that, if con­
ferencing has not occurred, NRAB panels have stayed
arbitration to allow the parties to confer. Tr. of Oral Arg.
16 UNION PACIFIC R. CO. v. LOCOMOTIVE ENGINEERS AND
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Opinion of the Court
10, 22.9
B
The RLA provides that, when on-property proceedings
do not yield settlement, both parties or either party may
refer the case to the Board “with a full statement of the
facts and all supporting data bearing upon the disputes.”
§153 First (i). Circular One correspondingly instructs
employees seeking Board adjudication “[to] set forth all
relevant, argumentative facts” and “affirmatively show the
same to have been presented to the carrier and made a
part of the particular question in dispute.” 29 CFR
§301.5(d); see §301.5(e) (similar instruction addressed to
carriers). Conferencing, the Carrier urged, is a “relevant,
argumentative fac[t],” so proof thereof must accompany
party submissions.
As earlier explained, see supra, at 14, instructions on
party submissions—essentially pleading instructions—are
claim-processing, not jurisdictional, rules. Moreover, the
Board itself has recognized that conferencing may not be a
“question in dispute.” It has counseled parties submitting
joint exhibits “to omit documents that are unimportant
and/or irrelevant to the disposition of the [case]; for exam­
ple . . . letters requesting a conference (assuming that is
not an issue in the dispute).” NRAB Instructions Sheet,
Joint Exh. Program, p. 5 (July 1, 2003), online at
http://www.nmb.gov/arbitration/nrab-instruc.pdf (as vis­
ited Dec. 3, 2009, and available in Clerk of Court’s case
——————
9 While holding that the panel did not lack jurisdiction over the em­
ployees’ claims, we recognize the Board’s authority to adopt claim­
processing rules backed by effective sanctions. See supra, at 3; cf. Fed.
Rule Civ. Proc. 37(b)(2) (specifying sanctions, including dismissal, for
failure to comply with discovery orders); Rule 41(b) (authorizing invol­
untary dismissal for failure to prosecute or to comply with rules of
procedure or court orders). We also recognize that NRAB panels, in
managing individual arbitrations, may prescribe and enforce reason­
able procedural requirements.
Cite as: 558 U. S. ____ (2009) 17
Opinion of the Court
file). It bears repetition here that neither the Union nor
the Carrier, in its submissions to the Board, identified
conferencing as a “question in dispute.” See supra, at 7.
It makes sense to exclude at the arbitration stage newly
presented “data . . . in support of [the] employee[’s] [griev­
ance],” 29 CFR §301.5(d)—evidence the carrier had no
opportunity to consider prearbitration. A contrary rule
would sandbag the carrier. But conferencing is not a fact
bearing on the merits of a grievance. Indeed, there may be
no disagreement at all about the occurrence of conferenc­
ing, as the Union believed to be the case here. Moreover,
the RLA respects the right of the parties to order for
themselves the conference procedures they will follow.
See 45 U. S. C. §152 Sixth (“[N]othing in this chapter shall
be construed to supersede the provisions of any agreement
(as to conferences) . . . in effect between the parties.”). In
sum, neither the RLA nor Circular One could plausibly be
read to require, as a prerequisite to the NRAB’s exercise of
jurisdiction, submission of proof of conferencing.
* * *
By refusing to adjudicate cases on the false premise that
it lacked power to hear them, the NRAB panel failed “to
conform, or confine itself,” to the jurisdiction Congress
gave it. We therefore affirm the judgment of the Court of
Appeals for the Seventh Circuit.
It is so ordered.