Eighth Circuit Joins One Circuit Split and Creates Another, Holds Employer's Challenge to NLRB Recess Appointments Is Nonjurisdictional and Waived | Practical Law
In NLRB v. RELCO Locomotives, Inc., the US Court of Appeals for the Eighth Circuit held that an employer waived its argument that two adverse unfair labor practice (ULP) decisions were invalid because the recess appointments to the National Labor Relations Board (NLRB) were unconstitutional and precluded the NLRB from having a lawful quorum when it issued them. The Eighth Circuit held the recess appointment issue is nonjurisdictional, was waived when the employer failed to raise it before the NLRB and was not such an "extraordinary circumstance" that the court should consider it despite the waiver.