122111P.pdf   08/20/2013  NLRB  v.  Relco Locomotives
   U.S. Court of Appeals Case No:  12-2111
                          and No:  12-2203
                          and No:  12-2447
                          and No:  12-2503
   National Labor Relations Board   
   [PUBLISHED] [Murphy, Author, with Wollman and Smith, Circuit Judges] 
   Petition for Review - NLRB. In petition for review of two NLRB 
   proceedings, RELCO Locomotives seeks review of two NLRB orders finding it 
   unlawfully discharged a total of eight workers for engaging in protected 
   labor activities and ordering reinstatement. Upon review of each 
   employee's termination, substantial evidence supports the Board's labor 
   law conclusions. After initial briefing RELCO raised issue challenging the 
   Board's composition and claiming three members had been appointed in 
   violation of the recess appointments clause of the U.S. Constitution. 
   RELCO waived its challenge to the Board's composition because it did not 
   raise the issue before the Board and therefore 29 U.S.C. sec. 160(e) bars 
   this court from considering the issue. In addition, because the Board's 
   decision was not "patently . . . outside the orbit" of the Board's 
   authority nor were there any new developments of fact or law unavailable 
   to RELCO during the original Board hearing, this case did not present 
   extraordinary circumstances required for this court to reach the 
   unpreserved argument. Judge Smith dissents on the recess appointment 
   issue.