Bad news for the Obama Administration and its battle over recess appointments to the National Labor Relations Board. An opinion issued today by the Supreme Court in the matter of NLRB v. Noel Canning says that what were positioned as recess appointments to the board are invalid, possibly invalidating hundreds of the board's decisions.

Noel Canning, a Pepsi-Cola distributor, previously asked the D. C. Circuit to set aside an order of the NLRB, claiming that the board lacked a quorum because three of the five Board members had been invalidly appointed. The nominations of the three members in question were pending in the Senate when it passed a Dec. 17, 2011, resolution providing for a series of “pro forma sessions,” with “no business transacted,” every Tuesday and Friday through January 20, 2012.

Invoking the presidential power to fill vacancies during a Congressional recess, President Obama appointed the three members in question between the Jan. 3 and Jan. 6 pro forma sessions. Noel Canning argued that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The D.C. Circuit agreed that the appointments fell outside that scope, but on different grounds. It held that the phrase “the recess,”  in this instance, does not include intra-session recesses, and that the phrase “vacancies that may happen during the recess” applies only to vacancies that first come into existence during a recess.

The good news for President Obama and future administrations is that the Supreme Court, with a 5-4 vote, clarified what was described as “ambiguous” law and “empowers the President to fill any existing vacancy during any recess—intra-session or intersession—of sufficient length.” In the particular case before it, however, the Court found that the NLRN appointments didn't fall under either scenario.

“Under the standard set forth here, the Senate was in session during the pro forma sessions at issue,” the majority opinion says. “It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply bypassing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on Dec. 23, 2011… Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a three-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.”

The opinion could invalidate many NLRB decisions made since Jan. 4, 2012. The appeals court ruling has already led nearly 90 companies—including Starbucks, McDonald's, Domino's Pizza, CNN, and Time Warner—and several unions to challenge recent NLRB decisions.

Among the NLRB decisions in jeopardy:

A ruling that unions must receive employee witness statements during a disciplinary investigation (Hawaii Tribune-Herald).

Ruling against overly broad social media policies, and a finding that blanket prohibitions on employees posting disparaging comments could affect union organizing. (Costco)

A finding that an employer's demand of “courtesy” by employees when using social media was a free speech imposition. (Karl Knauz Motors).

Overturning a longstanding precedent that written statements provided by employees during an investigation can be kept confidential. (Piedmont Gardens).

Overturning a mandatory arbitration policy for employees. (Supply Technologies).

A ruling that, with limited exemptions, employers cannot demand confidentiality from workers during internal investigations of employee complaints. (Banner Health System).

This isn't the first time the NLRB has suffered a wholesale dismissal of its decisions. The board operated for a period of time between 2008 and 2009 with only two board members due to the expiration of a recess appointment and an impasse between President Obama and the Senate over nominations.

In June 2010, the Supreme Court ruled, in the case of New Process Steel v. NLRB, that the two-member board at the time had no standing and invalidated approximately 600 rulings. Over time, many of those mooted decisions made their way back to the board and were reinstated.