On January 27, 2014, the Supreme Court dealt a blow to employers in the railway and airlines industries as it let stand an Eleventh Circuit decision in Amerijet International, Inc. v. NLRB, 520 Fed. Appx. 795 (11th Cir. 2013). The decision confirmed that the National Labor Relations Board (NLRB) has "the unreviewable authority to initially investigate unfair labor practice charges in order to determine whether to file a formal agency complaint." As such, whether the employer is subject to the NLRB’s jurisdiction "is initially for the investigation of the Board itself, and not to be contested … before any District Court that may get jurisdiction of his person." In other words, Railway Labor Act (RLA) employers cannot file a lawsuit to block the NLRB’s investigation because the courts have no "jurisdiction to prohibit the NLRB from initially investigating unfair labor practice charges against [employers subject to the Railway Labor Act (RLA)]."

However, the Eleventh Circuit did note that RLA employers are not entirely without recourse for challenging the NLRB’s jurisdiction in federal court:

If, for example, the NLRB seeks to enforce a subpoena under section 11(2) of the NLRA … it must do so in the district court, and [the employer] would be free to challenge the Board’s jurisdiction at that point. … Moreover, if the NLRB issues a formal complaint and subsequently orders that relief be granted, [the employer] may challenge the Board’s final order before this Court, including its jurisdiction.

Consequently, the practical effect of Amerijet International v. NLRB is that employers subject to the RLA might have to respond to the merits of a NLRB unfair labor practice charge in addition to establishing their jurisdictional defense that they are governed by the RLA. In some instances, that could simply mean submitting additional information and responding to the unfair labor practice charge’s factual allegations. In others, it could unfortunately mean expending significant time and resources litigating both the jurisdictional issue and the unfair labor practice allegations before a NLRB administrative law judge, the Members of the National Labor Relations Board, and then a court of appeals. Accordingly, employers governed by the RLA should consult their labor counsel to review appropriate strategies for responding to potential NLRB unfair labor practice charges.