(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 mandates 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 Adjustment Board (NRAB or Board), a board of 34 private persons representing labor and industry in equal numbers. 45 U. S. C. §153 

First (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 conferences) . . . 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 disputes.” Ibid. Parties may seek court review of an NRAB panel order 

on one or more stated grounds: “failure . . . to comply with the requirements 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 order.” §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 violations. 

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 disputes and the Carrier concedes that they conferenced at least two.

Dissatisfied with the outcome of the on-property proceedings, the Union sought arbitration before the NRAB’s First Division. Both parties

filed submissions in the five cases, but neither mentioned conferencing 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 decisions, dismissed the petitions for want of jurisdiction. The record 

could not be supplemented to meet the no-proof-of-conferencing objection, the panel reasoned, for as an appellate tribunal, the panel was

not empowered to consider de novo evidence and arguments. The Union 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 prerequisite 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 constitutional” 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 consequential 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.” Kontrick 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 discrimination 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 jurisdictional character of 28 U. S. C. §2107(a)’s time limitation for filing 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 “jurisdictional” than is the presuit resort to the EEOC held nonjurisdictional and forfeitable in Zipes. And if the conference requirement is 

not “jurisdictional,” then failure initially to submit proof of conferencing cannot be of that genre. And although the Carrier alleges that 

NRAB decisions support characterizing conferencing as jurisdictional, 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, submission 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. §152 

Sixth. 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, Washington, 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 exercise 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 unsettled after pursuit of internal procedures. 45 U. S. C. §153 

First (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 “jurisdictional” 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 presuming authority to declare procedural rules “jurisdictional,” 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 [employees’] claim[s],” Panel Decision 72a, its dismissals

lacked tenable grounding. We therefore affirm the judgment 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 interruption 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 tiebreaker. See id., at 610–613. To supply the representative 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 representative arbitrators or, failing their agreement, by the National Mediation Board. §153 First (l). The 1934 Amendment 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). 2The RLA divides the NRAB into four Divisions, each covering specified 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 

—————— 

3Central 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 agreements. 

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 agreement (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 conferences) . . . 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, argumentative facts, including all documentary evidence”). Arbitration is launched when the party referring the dispute 

files a notice of intent with the NRAB; after Board acknowledgment 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 superintended 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. PennsylvaniaReading 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 division shall be conclusive on the parties, except that the

order . . . may be set aside, in whole or in part, or remanded . . . , 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 

—————— 

4The disagreement stems from this Court’s per curiam opinion in 

Union Pacific R. Co. v. Sheehan, 439 U. S. 89 (1978). That case involved 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 employees with disciplinary violations. Their union, the 

Brotherhood of Locomotive Engineers and Trainmen

(hereinafter Union), initiated grievance proceedings pursuant to the CBA. The Union asserts that, following 

exhaustion of grievance proceedings, the parties conferenced all the disputes; counsel for the Carrier conceded at

argument that at least two of the disputes were conferenced, 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 necessarily knew whether the Union and the Carrier had conferred, 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 representative asserted that the on-property record included no proof

of conferencing. See ibid. The Carrier thereafter embraced the panel member’s objection. The neutral referee 

informed the Union of the issue and adjourned the hearing, 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 correspondence 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 untimely 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 decisions, 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 Decision 71a.5 In explaining why the record could not be supplemented 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 

—————— 

5The 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 maintained, 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 jurisdiction 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. Addressing the Union’s argument that the no-proof-ofconferencing issue was untimely raised, the court accepted

the panel’s description of the issue as “jurisdictional,” and 

noted the familiar proposition that jurisdictional challenges 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 documentation 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 prerequisite: “[N]o statute, regulation, or CBA,” the court concluded, “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 proceedings 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 Seventh Circuit’s judgment on an alternative ground. Reasserting 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 matters 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 

—————— 

6Quoted 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 crosspetition, . . . 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 observed, 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 constitutional, 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 conferencing. 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 Environment, 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 “prescriptions, however emphatic, are . . . properly typed jurisdictional,” we explained in Arbaugh v. Y & H Corp., 546 U. S. 

500, 510 (2006) (internal quotation marks omitted). Subject-matter jurisdiction properly comprehended, we emphasized, 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 “forfeited if the party asserting the rule waits too long to raise 

the point.” Kontrick v. Ryan, 540 U. S. 443, 456 (2004). 

—————— 

7A case of that order would be uncommon. As the Carrier acknowledges, “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 forfeitable 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 Employment Opportunity Commission (EEOC) before proceeding 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 employers 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 requirement 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 adjudicatory 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 followed, resort to the Board would ordinarily be objectionable 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 informal 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 conferencing 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 considered by any division of the Board unless the subject matter 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 

—————— 

8The RLA states, in §152 First, a general duty “to settle all disputes,”

and, in §152 Second, a more specific duty to “conference.” These provisions 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 adjourn 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 “jurisdictional,” 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 jurisdiction.” 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 entitled 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 remedy for lack of conferencing is to “dismiss th[e] claim without 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 conferencing 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 

TRAINMEN GEN. COMM. OF ADJUSTMENT 

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 example . . . 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 visited Dec. 3, 2009, and available in Clerk of Court’s case 

—————— 

9While holding that the panel did not lack jurisdiction over the employees’ claims, we recognize the Board’s authority to adopt claimprocessing 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 involuntary 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 reasonable 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] [grievance],” 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 conferencing, 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.