This past week, a National Labor Relations Board Administrative Law Judge determined that a sushi manufacturer violated the National Labor Relations Act by seeking to compel individual arbitration proceedings of a wage-and-hour class action brought by a former employee.  In his decision, Judge Wedekind determined that Fuji Food Products had run afoul of the NLRB’s D.R. Horton ruling, which provides that mandatory arbitration agreements requiring employees to waive their right to pursue collective action are unlawful. 

While an ALJ striking down yet another unlawful arbitration agreement is certainly a run of the mill ruling these days, this decision was notable for an entirely different reason.  Fuji had attempted to argue that the D.R. Horton decision itself was invalid because Member Craig Becker, one of the participating members in the ruling, was appointed by the President during an intrasession recess of the Senate.

Judge Wedekind gave this argument short shrift, explaining that the Supreme Court’s Noel Canning decision overruled the D.C. Circuit’s view that intrasession recesses were unconstitutional.  Despite Fuji’s arguments to the contrary, Member Becker’s appointment was most likely valid because he was appointed during a 17-day recess. 

“Further, the court’s analysis suggests that recess appointments will be upheld if the recess lasted 10 days or longer. Member Becker was appointed during a 17-day intrasession recess. Thus, his appointment appears to have been valid,” Judge Wedekind wrote.

Even though the ALJ’s decision is not particularly surprising, it is notable because it is the first time since the Supreme Court’s Noel Canning decision that a Board Judge had an opportunity to pass on the validity of recess appointments.  The larger open question, however, remains the continuing validity of the D.R. Horton decision.  The Board recently chose not to seek Supreme Court view of the Fifth Circuit’s decision invalidating D.R. Horton.  Accordingly, labor watchers must continue to wait and see whether the decision will stand the test of time, or whether it will be invalidated based on recent Supreme Court holdings like CompuCredit Corp. v. Greenwood or American Express Co. v. Italian Colors Restaurant.