WASHINGTON – The U.S. Supreme Court today agreed to hear a case on how much power the president has to appoint federal officials without the consent of the Senate.
The justices’ ultimate decision, expected late this year or early next, could determine whether Buffalo native Richard F. Griffin Jr. was legally appointed to the National Labor Relations Board and whether a key ruling by that board in a Buffalo case will be allowed to stand.
The high court agreed to hear NLRB v. Canning during its 2013-2014 term. The justices will decide whether the president’s power to appoint officials without Senate confirmation during congressional recesses still applies when the Senate is not in Washington, but technically convenes every three days in pro forma sessions.
The decision will likely more fully define the extent of the president’s recess appointment power, and it will have a direct bearing on Griffin’s future.
President Obama appointed Griffin and Sharon Block, another labor lawyer, to the labor board on Jan. 4, 2012, while the Senate, though not in town, was technically in session. Nevertheless, Obama deemed them to be “recess appointments” that did not need to be approved by the Senate.
Then, with Griffin sitting on the board, the NLRB decided what is viewed as a key case from Buffalo on Internet freedom in the workplace.
Fired after her boss saw their Facebook conversation about working conditions at Hispanics United of Buffalo, Mariana Cole-Rivera and four of her former colleagues at the small Buffalo nonprofit filed a complaint with the National Labor Relations Board to try to regain their jobs and back pay. And last December, they won.
What’s more, they won the first-ever federal edict on how far workers can go when discussing their work on social media.
“Employees have a protected right to discuss matters affecting their employment amongst themselves,” the NLRB ruled.
But now that NLRB ruling, and countless others, are under legal question because they were decided by board members who may not be serving legally on the board.
The Supreme Court case is likely to provide clarity as to whether the Hispanics United ruling can stand.