Two federal appeals courts have ruled that President Obama’s appointment of Griffin and two other NLRB members was unconstitutional, because it occurred during a period while the Senate was not technically in recess.
The Supreme Court will take up one of the cases in its next term.
Obama renominated Griffin to the board this year, but agreed to withdraw the pick in July, as part of a deal to confirm a slate of top federal agency leaders. In exchange for replacing Griffin and Sharon Block, another disputed labor board member, Republicans in the Senate agreed not to filibuster Obama’s nominees, including new NLRB members.
All five NLRB nominees were confirmed earlier this week.
Before being appointed to the labor board, Griffin spent nearly 30 years in the International Union of Operating Engineers.
He will need to be confirmed by the Senate before taking office.