Securitas Security Services USA, Inc.

National Labor Relations Board - Board Decisions

May 11, 2016

363 NLRB No. 182 (N.L.R.B. 2016)

363 NLRB No. 182
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Securitas Security Services USA, Inc. and Charles
Dunaway and Walter Linares. Cases 31–CA–
072179, 31–CA–088081, 31–CA–072180, and 31–
CA–088082
May 11, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On November 8, 2013, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Parties filed answer-
ing briefs, and the Respondent filed a reply brief. The
Charging Parties also filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to

1 In its brief in support of exceptions, the Respondent, citing Hooks
v. Kitsap Tenant Support Services, Inc., 2013 WL 4094344 (W.D.
Wash. August 13, 2013), affd. 816 F.3d 550 (9th Cir. 2016), argues that
the Acting General Counsel was “invalidly appointed and without the
power to issue a complaint in this matter under the Federal Vacancies
Reform Act.” The Respondent did not further elaborate on its argu-
ment, if any, regarding Kitsap.
For the reasons set forth below, we find no merit in the Respond-
ent’s argument that the Acting General Counsel was improperly or
unlawfully “appointed.” At the outset, we note that under the Federal
Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., a person is
not “appointed” to serve in an acting capacity in a vacant office that
otherwise would be filled by appointment by the President, by and with
the advice and consent of the Senate. Rather, either the first assistant to
the vacant office performs the functions and duties of the office in an
acting capacity by operation of law pursuant to 5 U.S.C. § 3345(a)(1),
or the President directs another person to perform the functions and
duties of the vacant office in an acting capacity pursuant to 5 U.S.C. §
3345(a)(2) or (3).
On June 18, 2010, the President directed Lafe Solomon, then-
Director of the NLRB’s Office of Representation Appeals to serve as
Acting General Counsel pursuant to subsection (a)(3)—the senior
agency employee provision. Under the strictures of that provision,
Solomon was eligible to serve as Acting General Counsel at the time
the President directed him to do so. See SW General, Inc. v. NLRB,
796 F.3d 67, 73 (D.C. Cir. 2015) (Solomon was qualified to serve as
Acting General Counsel under the FVRA and he validly served in that
capacity at the direction of the President). Thus, Solomon properly
assumed the duties of Acting General Counsel and we find no merit in
the Respondents’ affirmative defense that the Acting General Counsel
was “invalidly appointed.”
Although the Respondent does not rely on SW General, we
acknowledge that the court in SW General also held that Solomon lost
his authority as Acting General Counsel on January 5, 2011, when the
affirm the judge’s rulings, findings and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
Background
On June 14, 2011, the Respondent implemented two
arbitration agreements (collectively, the Agreements).
The Securitas USA Dispute Resolution Agreement, in-
formally called the “New Hire Agreement,” applies to
employees who were hired by the Respondent in Califor-

President nominated him to be General Counsel. While that question is
still in litigation, the Respondent did not raise that argument in this
proceeding, and we find that the Respondent thereby has waived the
right to do so.
Finally, on October 22, 2015, General Counsel Richard F. Griffin,
Jr., issued a notice of ratification which states, in relevant part:
I was confirmed as General Counsel on November 4, 2013. After
appropriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewable
discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in SW General. Rather, my decision is a practical response aimed
at facilitating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by expressly ex-
empting “the General Counsel of the National Labor Relations Board”
from the FVRA provisions that would otherwise preclude the ratifica-
tion of certain actions of other persons found to have served in violation
of the FVRA. [Citation omitted.]
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
Even if the Respondent had not previously waived its right to chal-
lenge the continued authority of the Acting General Counsel following
his nomination by the President, this ratification by the General Coun-
sel would render moot any argument that the SW General holding con-
cerning the former Acting General Counsel’s authority precludes fur-
ther litigation in this matter.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language for the violations found. These
modifications include an order that the Respondent reimburse the
Charging Parties and any other plaintiffs for all reasonable expenses
and legal fees, with interest, incurred in opposing the Respondent’s
unlawful enforcement of its Current Employee Agreement by moving
to amend the class definition in the wage-and-hour action pending in
Los Angeles County Superior Court. See Bill Johnson’s Restaurants v.
NLRB, 461 U. S. 731, 747 (1983) (“If a violation is found, the Board
may order the employer to reimburse the employees whom he had
wrongfully sued for their attorneys’ fees and other expenses” as well as
“any other proper relief that would effectuate the policies of the Act.”).
Interest shall be computed in the manner prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). See Teamsters Local 776
(Rite Aid Corp.), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole
orders for suits maintained in violation of the Act, it is appropriate and
necessary to award interest on litigation expenses.”), enfd. 973 F.2d
230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993). We shall also
order the Respondent to notify the Los Angeles County Superior Court
that it has rescinded or revised the Current Employee Agreement and to
inform the court that it no longer seeks to exclude employees covered
by the Current Employee Agreement from the class. Additionally, we
shall substitute a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nia after June 14, 2011. The Securitas Security Services
USA, Inc. Dispute Resolution Agreement, informally
called the “Current Employee Agreement,” applies to
employees who were employed by the Respondent on
June 14, 2011.
The New Hire Agreement “applies to any dispute aris-
ing out of or related to Employee’s employment” with
the Respondent “or termination of employment,” and
“[e]xcept as it otherwise provides,” it “requires all such
disputes to be resolved only by an arbitrator through final
and binding arbitration and not by way of court or jury
trial.” The New Hire Agreement further provides that
“there will be no right or authority for any dispute to be
brought, heard or arbitrated as a class, collective or rep-
resentative action.” The New Hire Agreement also
states:
Claims may be brought before an administrative agen-
cy but only to the extent applicable law permits access
to such an agency notwithstanding the existence of an
agreement to arbitrate. Such administrative claims in-
clude without limitation claims or charges brought be-
fore the Equal Employment Opportunity Commission
(www.eeoc.gov), the U.S. Department of Labor
(www.dol.gov), the National Labor Relations Board
(www.nlrb.gov), or the Office of Federal Contract
Compliance Programs (www.dol.gov/esa/ofccp).
Like the New Hire Agreement, the Current Employee
Agreement also mandates that all employment-related
disputes with the Respondent be resolved through arbi-
tration; it precludes class, collective or representative
arbitration; and it contains the same language quoted
above regarding claims brought before an administrative
agency. However, by its terms, the Current Employee
Agreement does not apply to any pending class, collec-
tive or representative action against the Respondent in
which any current employee is “a named party plaintiff”
or has “joined as a party plaintiff.” The Current Em-
ployee Agreement includes a provision under which em-
ployees may opt out by calling a toll-free number within
30 days of receiving the Current Employee Agreement,
and it explains that current employees who are not cur-
rently plaintiffs in any pending class or collective action
but who may wish to become plaintiffs may do so by
opting out.
In June 2009, Charging Parties Charles Dunaway and
Walter Linares (and a third individual) filed a wage-and-
hour class action against the Respondent in Los Angeles
County Superior Court. In August 2012, the Respondent
filed a motion in that action to amend the class definition
to exclude employees covered by the Current Employee
Agreement. That motion is still pending. As far as the
record indicates, the Respondent has not sought to en-
force the New Employee Agreement.
Discussion
1. Applying the Board’s decision in D. R. Horton,
Inc., 357 NLRB 2277 (2012), enf. denied in relevant part
737 F.3d 344 (5th Cir. 2013),3 the judge found that the
Respondent violated Section 8(a)(1) of the Act by main-
taining and, in the case of the Current Employee Agree-
ment, enforcing arbitration agreements that require em-
ployees, as a condition of employment, to waive their
right to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial. We affirm the judge’s findings, based on the
judge’s application of D. R. Horton, supra, and on our
subsequent decision in Murphy Oil, supra.4

3 In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in
relevant part 808 F.3d 1013 (5th Cir. 2015), the Board reaffirmed the
relevant holdings of D. R. Horton, supra.
In its brief in support of exceptions, the Respondent asserts that the
Board’s decision in D. R. Horton was not valid because the Board “did
not have a quorum when the Board issued the decision.” For the rea-
sons set forth in Murphy Oil, above, slip op. at 2 fn. 16, we reject this
argument. See also Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812,
813 (D.C. Cir. 2014) (“[T]he President’s recess appointment of Mem-
ber Becker was constitutionally valid.”); Gestamp South Carolina,
L.L.C. v. NLRB, 769 F.3d 254, 257–258 (4th Cir. 2014) (same).
4 Our dissenting colleague observes that the Act does not “dictate”
any particular procedures for the litigation of non-NLRA claims and
“creates no substantive right for employees to insist on class-type
treatment” of such claims. This is all surely correct, as the Board has
previously explained in Murphy Oil, supra, 361 NLRB No. 72, slip op.
at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2 & fn. 2 (2015).
But what our colleague ignores is that the Act “does create a right to
pursue joint, class, or collective claims if and as available, without the
interference of an employer-imposed restraint.” Murphy Oil, supra, slip
op. at 2 (emphasis in original). The Respondent’s Agreements impose
just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
Agreements unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 3. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
Finally, we reject our dissenting colleague’s view that the Respond-
ent’s motion to amend the class definition to exclude employees cov-
ered by the Current Employee Agreement was protected by the First
Amendment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB,
461 U.S. 731 (1983), the Court identified two situations in which a
lawsuit enjoys no such protection: where the action is beyond a state
court’s jurisdiction because of federal preemption, and where “a
suit . . . has an objective that is illegal under federal law.” Id. at 737 fn.
5. Thus, the Board may properly restrain litigation efforts, such as the
Respondent’s motion to amend the class, that have the illegal objective
of limiting employees’ Sec. 7 rights and enforcing an unlawful contrac-
tual provision, even if the litigation was otherwise meritorious or rea-
sonable. See Murphy Oil, supra, slip op. at 20–21; Convergys Corp.,
363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
SECURITAS SECURITY SERVICES USA, INC. 3
To the extent that the Respondent contends that the
complaint is time-barred by Section 10(b) because the
initial unfair labor practice charges were filed and served
more than 6 months after the Agreements were first im-
plemented, we, like the judge, reject this argument.5 The
Respondent continued to maintain the unlawful Agree-
ments during the 6-month period preceding the filing of
the initial charges. The Board has long held under these
circumstances that maintenance of an unlawful work-
place rule, such as the Respondent’s Agreements, consti-
tutes a continuing violation that is not time-barred by
Section 10(b). See PJ Cheese, Inc., 362 NLRB No. 177,
slip op. at 1 (2015); The Neiman Marcus Group, 362
NLRB No. 157, slip op. at 2 & fn. 6 (2015); Cellular
Sales of Missouri, LLC, 362 NLRB No. 27, slip op. at 2
& fn. 7 (2015).
We also reject the Respondent’s and our dissenting
colleague’s contention that the opt-out provision of its
Current Employee Agreement places it outside the scope
of the prohibition against mandatory individual arbitra-
tion agreements under Murphy Oil and D. R. Horton.
See D. R. Horton, supra at 2288–2289 & fn. 28. The
judge rejected this contention, and we do as well for the
following reasons. The Board has held that an opt-out
procedure still imposes an unlawful mandatory condition
of employment that falls squarely within the rule of D. R.
Horton. See On Assignment Staffing Services, 362
NLRB No. 189, slip. op at 1, 4–5 (2015); see also Nijjar
Realty, Inc., d/b/a Pama Management, 363 NLRB No.
38, slip op. at 2 (2015) (rejecting the employer’s asser-
tion that the opt-out provision of its arbitration agreement
made the agreement lawful); U.S. Xpress Enterprises,
Inc., 363 NLRB No. 46, slip op. at 1–2 (2015) (same);
Bristol Farms, 363 NLRB No. 45, slip op. at 1 (2015)
(opt-in provision). The Board further held in On As-
signment, slip op. at 1, 5–8, that even assuming that an
opt-out provision renders an arbitration agreement not a
condition of employment (or non-mandatory), an arbitra-
tion agreement precluding class or collective actions in
all forums is unlawful even if entered into voluntarily
because it requires employees to prospectively waive
their Section 7 right to engage in concerted activity. In-
deed, the Board there stated that “such non-mandatory
agreements are contrary to the National Labor Relations
Act and to fundamental principles of federal labor poli-
cy.” Id., slip op. at 6.

5 The parties stipulated that the Respondent has distributed the New
Hire Agreement to employees hired by the Respondent in California
after June 14, 2011, and that “affected employees” have been required
to sign it. Contrary to the Respondent’s argument, we find these stipu-
lated facts sufficient to establish that the Respondent has maintained the
New Hire Agreement within the 10(b) period.
2. The judge also found that the Agreements inde-
pendently violated Section 8(a)(1) by interfering with
employees’ right to file unfair labor practice charges with
the Board. We agree, for the following reasons.6
The Board applies its Lutheran Heritage Village-
Livonia7 test to determine whether employees would
reasonably believe that arbitration policies interfere with
their ability to file a Board charge or otherwise access the
Board’s processes. See also SolarCity Corp., 363 NLRB
No. 83, slip op. at 4 (2015). In making that determina-
tion, the Board recognizes that “[r]ank-and-file employ-
ees . . . cannot be expected to have the expertise to exam-
ine company rules from a legal standpoint.” Id., slip op.
at 5, quoting Ingram Book Co., 315 NLRB 515, 516 fn. 2
(1994). As a result, the Board has found insufficient
language in workplace rules purporting to except, or
“save,” employees’ legal rights from restrictions on their
conduct. See SolarCity Corp., supra, slip op. at 5 & fn.
18, and cases cited therein. This is so even where such
exceptions referred to the “NLRA” or “the National La-
bor Relations Act.” See id. at 5 & fn. 19 (and cases cited

6 The Respondent argues that the judge’s finding that the Agree-
ments bar or restrict employees’ right to file charges with the Board is
beyond the scope of the stipulated issues and that the corresponding
charge was withdrawn by the Charging Parties. We disagree, and find
that the judge properly considered this allegation. Two charges were
filed on March 23, 2012, alleging that the Respondent violated Sec.
8(a)(1) and (4) by maintaining a policy that interferes with employees’
access to the Board. Although the 8(a)(4) allegation was subsequently
withdrawn, the 8(a)(1) allegation remained active, as the Regional
Director’s letter to the Respondent, notifying it of the withdrawal, made
clear. Indeed, the October 26, 2012 complaint alleged that the Re-
spondent’s Agreements were unlawful for two reasons, first because the
Agreements “require employees to arbitrate all employment-related
claims and forgo any rights they have to resolution . . . by collective or
class action,” and second because “employees would reasonably con-
clude [the Agreements] preclude them from filing unfair labor practice
charges with the . . . Board.” Although the parties thereafter stipulated
that one of the issues to be decided by the judge was whether the Re-
spondent violated Sec. 8(a)(1) by maintaining the Agreements, that
language is broad enough to encompass both theories of violation al-
leged in the complaint. Further, the General Counsel’s statement of
position in the joint motion to transfer proceedings to the Division of
Judges and stipulation of issues presented clearly stated and presented
arguments supporting both of the theories alleged in the complaint, as
did the General Counsel’s posthearing brief to the judge. Moreover,
the Respondent responded to this assertion in its posthearing brief,
arguing that the Agreements expressly preserved employees’ rights to
file charges with the Board. In these circumstances, we find that the
issue of whether employees would reasonably believe that the Agree-
ments bar or restrict their right to file charges with the Board was fully
and fairly litigated, and we reject the Respondent’s due process excep-
tion.
7 343 NLRB 646 (2004).
We note our dissenting colleague’s view that the standard set forth
in Lutheran Heritage should be changed. We disagree with that view
for the reasons stated in William Beaumont Hospital, 363 NLRB No.
162, slip op. at 2–6 (2016).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
therein). See also ISS Facility Services, 363 NLRB No.
160, slip op. at 2 (2016); Ralph’s Grocery Co., 363
NLRB No. 128, slip op. at 2–3 (2016). “The rationale
underlying these decisions is that, absent language more
clearly informing employees about the precise nature of
the rights supposedly preserved, the rule remains vague
and likely to leave employees unwilling to risk violating
the rule by exercising Section 7 rights.” SolarCity, su-
pra, slip op. at 5.
The Agreements suffer from this vagueness, even with
the provisions purporting to preserve employees’ right to
file charges with the Board.8 The Agreements specifical-
ly apply to “any dispute arising out of or related to” an
employee’s employment, and the Agreements state that
they “require[] all such disputes to be resolved only by
an arbitrator through final and binding arbitration”
(bold as in original). The Agreements further announce
that “there will be no right or authority for any dispute to
be brought, heard or arbitrated as a class, collective or
representative action (‘Class Action Waiver’),” thereby
conveying to employees that, as a condition of employ-
ment, they must forfeit their substantive Section 7 right
to act collectively in pursuing an employment dispute in
any forum. The Respondent and our dissenting col-
league assert that employees would not reasonably con-
strue the Agreements to interfere with an employee’s
right to file charges with the Board because the Agree-
ments specifically state that claims may be brought be-
fore an administrative agency, including “claims or
charges” brought before the Board. We disagree that this
language saves the policy.
This argument disregards the confusing language in
the Agreements stating that the filing of Board charges is
permitted “only to the extent applicable law permits ac-
cess to such an agency notwithstanding the existence of
an agreement to arbitrate.” In SolarCity, the Board
found that a virtually identical caveat could not reasona-
bly be understood by employees as having no effect on
their right to file Board charges. See 363 NLRB No. 83,
slip op. at 5 fn. 20. See also ISS Facility Services, 363
NLRB No. 160, slip op. at 2–3 (2016). This confusing
and ambiguous statement—especially when read in con-
junction with the Agreement’s previous sentences em-
phasizing that arbitration applies to “any dispute” and
requires “all such disputes to be resolved only by an arbi-
trator”—would reasonably cause employees to be con-
fused as to whether they retained the statutory right to
file charges with and otherwise access the Board’s pro-
cesses. “[A]ny ambiguity in the rule must be construed

8 The sentences highlighted by the Respondent and our dissenting
colleague are included in paragraph one of both Agreements, set forth
above in the Background section of this decision.
against the Respondent as the promulgator of the rule.”
Lafayette Park Hotel, 326 NLRB 824, 828 (1998), enfd.
203 F.3d 52 (D.C. Cir. 1999). Accord SolarCity, supra,
slip op. at 6. Therefore, we find that employees would
reasonably understand the vague, unexplained language
of the Agreements to be coercive and would be restrained
in exercising their Section 7 right to file charges with the
Board out of fear that doing so would run afoul of the
vague caveat discussed above.9
Moreover, we find that even if employees could de-
termine from the Agreements that they could invoke the
Board’s processes, other language in the Agreements
states that they must do it individually and not in concert
with other employees. The Agreements’ “Class Action
Waiver” provides that “there will be no right or authority
for any dispute to be brought, heard or arbitrated as a
class, collective or representative action.” As in
SolarCity, this broad language clearly encompasses filing
an unfair labor practice charge with the Board when that
charge purports to address a group or collective concern.
363 NLRB No. 83, slip op. at 6. See also ISS Facility,
supra, 363 NLRB No. 160, slip op. at 3. And it would be
unclear to the reader, especially one without specialized
legal knowledge, whether and to what extent the Agree-
ment’s exception for filing charges with administrative
agencies modifies the broad prohibition on pursuing any
form of collective or representative activity, particularly
since the Agreements’ exception for filing charges with
the Board does not clarify that such charges may be filed
on an individual or collective basis. This ambiguity
would lead reasonable employees to question whether
they may file an unfair labor practice charge, particularly
when the charge is filed with or on behalf of other em-
ployees, and thus constitutes another way in which the
Agreements unlawfully interfere with employees’ right
to file charges with the Board.
Finally, our finding that the Agreements are unlawful
effectuates the Congressional policy of vigorously safe-
guarding access to the Board’s processes. As explained,
the Board and the courts have long recognized that “fil-
ing charges with the Board is a vital employee right de-
signed to safeguard the procedure for protecting all other
employee rights guaranteed by Section 7.” Mesker Door,
Inc., 357 NLRB 591, 596 (2011). For this reason, the
Board must take care to ensure that employer rules do
not chill employees from filing charges with the Board
and instead are clear that employees retain the “complete

9 As indicated in Lutheran Heritage, supra, 343 NLRB at 647,
workplace rules like the Agreements here are to be “read as a whole” in
construing their legality. Contrary to the dissent’s argument, we have
done exactly that by examining the language relating to the filing of
charges in context with the remaining language in the Agreements.
SECURITAS SECURITY SERVICES USA, INC. 5
freedom” that Congress intended them to enjoy.10 In our
view, the Agreements here fail in this fundamental re-
spect.
ORDER
The National Labor Relations Board orders that the
Respondent, Securitas Security Services USA, Inc.,
Westlake Village, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining mandatory arbitration agreements (the
New Hire Agreement and Current Employee Agreement)
that employees reasonably would believe bar or restrict
the right to file charges with the National Labor Rela-
tions Board.
(b) Maintaining and, in the case of the Current Em-
ployee Agreement, enforcing mandatory arbitration
agreements that require employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the mandatory arbitration agreements in all
their forms, or revise them in all their forms to make
clear to employees that the arbitration agreements do not
constitute waivers of their right to maintain employment-
related joint, class, or collective actions in all forums and
that the agreements do not bar or restrict employees’
right to file charges with the National Labor Relations
Board.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the un-
lawful arbitration agreements in any form that they have
been rescinded or revised and, if revised, provide them a
copy of the relevant revised agreement.
(c) Notify the Superior Court of the State of California,
County of Los Angeles in Case No. BC-4-16555 that it
has rescinded or revised the mandatory arbitration
agreement upon which it based its motion to amend the
class definition to exclude employees subject to the Cur-
rent Employee Agreement, and inform the court that it no
longer seeks to amend the class definition based on the
Current Employee Agreement.
(d) In the manner set forth in this decision, reimburse
Charles Dunaway, Walter Linares, Sandra Blacksher and
any other plaintiffs in Case No. BC-4-16555 for any rea-
sonable attorneys’ fees and litigation expenses that they

10 NLRB v. Scrivener, 405 U.S. 117, 122 (1972).
may have incurred in opposing the Respondent’s motion
to amend the class definition.
(e) Within 14 days after service by the Region, post at
all its California facilities copies of the attached notice
marked “Appendix.”11 Copies of the notices, on forms
provided by the Regional Director for Region 31, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since July 9, 2011, and to any employees against
whom the Respondent has enforced its Current Employ-
ee Agreement since July 9, 2011.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 11, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
In this case, the Respondent and its employees entered
into the New Hire Agreement and Current Employee
Agreement (together, the “Agreements”), which provide

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the arbitration of non-NLRA employment-related
claims, and under which employees waive the right to
pursue such claims through class or collective actions.
The Agreements specifically exclude from their scope
the filing of charges with the National Labor Relations
Board (NLRB or Board).
Relying on the majority opinion in Murphy Oil,1 my
colleagues find that the Respondent violated Section
8(a)(1) of the Act by maintaining the Agreements and
enforcing the Current Employee Agreement because they
contain class-action waivers. Relying on Lutheran Her-
itage Village-Livonia2 and SolarCity,3 my colleagues
additionally find the Agreements unlawful on the basis
that employees would reasonably believe they interfere
with their right to file charges with the Board. For the
reasons set forth below, I respectfully dissent.4
1. The class-action waivers are not unlawful, and nei-
ther was the enforcement of the waiver in the Current
Employee Agreement. I agree that an employee may
engage in “concerted” activities for “mutual aid or pro-
tection” in relation to a claim asserted under a statute
other than NLRA.5 However, I disagree with my col-

1 Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in
relevant part 808 F.3d 1013 (5th Cir. 2015).
2 343 NLRB 646 (2004).
3 Solar City Corp., 363 NLRB No. 83 (2015).
4 In analyzing whether an arbitration agreement is unlawfully over-
broad with respect to whether employees may file Board charges, the
Board has applied the first prong of the Lutheran Heritage standard,
i.e., whether “employees would reasonably construe the language [of
the agreement] to prohibit Section 7 activity.” 343 NLRB at 647. See,
e.g., U-Haul Co. of California, 347 NLRB 375, 377 (2006) (following
Lutheran Heritage, supra), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
As I explained in my partial dissenting opinion in William Beaumont
Hospital, 363 NLRB No. 162, slip op. at 7–24 (2016), I would replace
the prong one “reasonably construe” Lutheran Heritage standard with a
balancing analysis under which a facially neutral rule, policy or hand-
book provision would be deemed unlawful only if legitimate justifica-
tions associated with the rule are outweighed by an adverse impact on
Sec. 7 activity. But even under the Lutheran Heritage “reasonably
construe” standard, I believe the Agreements should be found lawful.
5 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting). Here, the Agreements ex-
pressly state that “an Employee will not be retaliated against, disci-
plined or threatened with discipline as a result of exercising his or her
rights under Section 7 of the National Labor Relations Act by the filing
of or participation in a class, collective or representative action in any
forum . . . .” There is no allegation here that the Respondent has retali-
leagues’ finding that Section 8(a)(1) of the NLRA pro-
hibits agreements that waive class and collective actions,
and I especially disagree with the Board’s finding here,
similar to the Board majority’s finding in On Assignment
Staffing Services,6 that class-waiver agreements violate
the NLRA even when they contain an opt-out provision.
In my view, Sections 7 and 9(a) of the NLRA render
untenable both of these propositions. As discussed in my
partial dissenting opinion in Murphy Oil, NLRA Section
9(a) protects the right of every employee as an “individu-
al” to “present” and “adjust” grievances “at any time.”7
This aspect of Section 9(a) is reinforced by Section 7 of
the Act, which protects each employee’s right to “refrain
from” exercising the collective rights enumerated in Sec-
tion 7. Thus, I believe it is clear that (i) the NLRA cre-
ates no substantive right for employees to insist on class-
type treatment of non-NLRA claims;8 (ii) a class-waiver
agreement pertaining to non-NLRA claims does not in-
fringe on any NLRA rights or obligations, which has
prompted the overwhelming majority of courts to reject
the Board’s position regarding class-waiver agreements;9

ated against any employee for engaging in protected concerted activity
in connection with any class or collective action.
6 362 NLRB No. 189, slip op. at 1, 4–5 (2015).
7 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
8 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 357 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
9 The Fifth Circuit has repeatedly denied enforcement of Board or-
ders invalidating a mandatory arbitration agreement that waived class-
type treatment of non-NLRA claims. See, e.g., Murphy Oil USA, Inc.
v. NLRB, 808 F.3d 1013 (5th Cir. 2015); D. R. Horton, Inc. v. NLRB,
above. The overwhelming majority of courts considering the Board’s
position have likewise rejected it. See Murphy Oil, 361 NLRB No. 72,
slip op. at 34 (Member Miscimarra, dissenting in part); id., slip op. at
36 fn. 5 (Member Johnson, dissenting) (collecting cases); see also
Patterson v. Raymours Furniture Co., Inc., 96 F. Supp. 3d 71
SECURITAS SECURITY SERVICES USA, INC. 7
(iii) enforcement of a class-action waiver as part of an
arbitration agreement is also warranted by the Federal
Arbitration Act (FAA);10 and (iv) for the reasons stated
in my dissenting opinion in Nijjar Realty, Inc. d/b/a
Pama Management, 363 NLRB No. 38, slip op. at 3–5
(2015), the legality of such a waiver is even more self-
evident when the agreement contains an opt-out provi-
sion, based on every employee’s Section 9(a) right to
present and adjust grievances on an “individual” basis
and each employee’s Section 7 right to “refrain from”
engaging in protected concerted activities. Although
questions may arise regarding the enforceability of par-
ticular agreements that waive class or collective litigation
of non-NLRA claims, I believe these questions are ex-
clusively within the province of the court or other tribu-
nal that, unlike the NLRB, has jurisdiction over such
claims.
Because I believe the Respondent’s Agreements were
lawful under the NLRA, I would find it was similarly
lawful for the Respondent to file a motion in state court
seeking to enforce the Current Employee Agreement by
amending the class definition to exclude employees cov-
ered by that agreement. That the Respondent’s motion
was reasonably based is supported by court decisions that
have enforced similar agreements.11 As the Fifth Circuit
recently observed after rejecting (for the second time) the
Board’s position regarding the legality of class waiver
agreements: “[I]t is a bit bold for [the Board] to hold that
an employer who followed the reasoning of our D. R.
Horton decision had no basis in fact or law or an ‘illegal
objective’ in doing so. The Board might want to strike a
more respectful balance between its views and those of
circuit courts reviewing its orders.”12 I also believe that
any Board finding of a violation based on the Respond-
ent’s well-founded state court motion to amend the class
definition would improperly risk infringing on the Re-

(S.D.N.Y. 2015); Nanavati v. Adecco USA, Inc., 99 F. Supp. 3d 1072
(N.D. Cal. 2015), motion to certify for interlocutory appeal denied 2015
WL 4035072 (N.D. Cal. June 30, 2015); Brown v. Citicorp Credit
Services, Inc., No. 1:12-cv-00062-BLW, 2015 WL 1401604 (D. Idaho
Mar. 25, 2015) (granting reconsideration of prior determination that
class waiver in arbitration agreement violated NLRA); but see Totten v.
Kellogg Brown & Root, LLC, No. ED CV 14-1766 DMG (DTBx), 2016
WL 316019 (C.D. Cal. Jan. 22, 2016).
10 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
11 See, e.g., Murphy Oil USA, Inc. v. NLRB, above; Johnmohammadi
v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton, Inc. v.
NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir.
2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
12 Murphy Oil USA, Inc. v. NLRB, 808 F.3d at 1021.
spondent’s rights under the First Amendment’s Petition
Clause. See Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731 (1983); BE & K Construction Co. v. NLRB, 536
U.S. 516 (2002); see also my partial dissent in Murphy
Oil, above, 361 NLRB No. 72, slip op. at 33–35. Finally,
for similar reasons, I believe the Board cannot properly
require the Respondent to reimburse the Charging Parties
and other plaintiffs in the class action for their attorneys’
fees in the circumstances presented here. Murphy Oil,
above, 361 NLRB No. 72, slip op. at 35.
2. The Agreements do not interfere with NLRB charge
filing. Nor do I agree that the Agreements violate Sec-
tion 8(a)(1) by interfering with the filing of Board charg-
es or their resolution by the Board. In my view, any rea-
sonable construction of the Agreements reveals that it
excludes the filing of NLRB charges from its scope.
Although the Agreements state that they apply to “any”
employment-related disputes that employees may have
with the Respondent, they also explicitly inform employ-
ees that they retain the right to file charges with the
NLRB.13
I agree that an employment agreement may constitute
unlawful interference with NLRA-protected rights to the
extent that it purports to limit the right of employees to
file charges with the Board.14 However, the Agreements
do not limit this right. The Fifth Circuit reached precise-
ly the same conclusion based on similar facts in Murphy
Oil USA, Inc. v. NLRB, above. Although the court
agreed that the employer’s original arbitration agreement
violated NLRA Section 8(a)(1) because it broadly re-
quired arbitration of “any claims” with no language that
permitted the filing of NLRB charges, 808 F.3d at 1019,
the court held lawful a revised agreement that stated:
“[N]othing in this Agreement precludes [employees] . . .
from participating in proceedings to adjudicate unfair
labor practice[] charges before the [Board],” id. at 1019–
1020 (alterations in original). Based on this provision,
the court held that, reading the agreement “as a whole, it
would be unreasonable for an employee to construe the
Revised Arbitration Agreement as prohibiting the filing

13 The Agreements state: “Claims may be brought before an admin-
istrative agency but only to the extent applicable law permits access to
such an agency notwithstanding the existence of an agreement to arbi-
trate. Such administrative claims include without limitation claims or
charges brought before . . . the National Labor Relations Board.”
Astonishingly, although the judge quoted the first of these two sentenc-
es in his decision, he omitted the second sentence, which was disposi-
tive of the issue before him—i.e., whether the Agreements interfere
with the right to file charges with the Board.
14 See, e.g., GameStop Corp., 363 NLRB No. 89, slip op. at 4–7
(2015) (Member Miscimarra, concurring in part and dissenting in part);
The Rose Group d/b/a Applebee’s Restaurant, 363 NLRB No. 75, slip
op. at 3–5 (2015) (Member Miscimarra, concurring in part and dissent-
ing in part).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Board charges when the agreement says the opposite.”
Id. at 1020.
Notwithstanding express language to the contrary, my
colleagues find the Agreements prohibit filing charges
with the Board. They purport to apply prong one of the
Lutheran Heritage test—i.e., whether a reasonable em-
ployee would construe the Agreements to prohibit charge
filing—but Lutheran Heritage contradicts their analysis.
There, the Board held that a policy, rule or employee
handbook provision would be deemed unlawful when
“employees would reasonably construe the language to
prohibit Section 7 activity,” and the Board expressly
warned against “presum[ing] improper interference” with
Section 7 rights and finding interference “simply because
the rule could be interpreted” that way.15 My colleagues
base their finding on what they deem to be ambiguity in
the Agreements, but the Agreements are not ambiguous.
After stating that “[c]laims may be brought before an
administrative agency but only to the extent applicable
law permits access to such an agency notwithstanding the
existence of an agreement to arbitrate,” the Agreements
make clear that “[s]uch administrative claims include
without limitation claims or charges brought before . . .
the National Labor Relations Board” (emphasis added).
In other words, “claims or charges brought before . . . the
National Labor Relations Board” are included within the
class of claims that “may be brought before an adminis-
trative agency.” No other reasonable interpretation is
possible.16
My colleagues pursue an analysis that prompts one to
wonder whether any language would suffice to protect
NLRB charge filing, even when an arbitration agreement
expressly indicates that employees may file charges with
the Board. As I have just explained, the agreement at
issue here provides that claims that “may be brought be-
fore an administrative agency . . . . include . . . claims or
charges brought before . . . the National Labor Relations
Board.” Nonetheless, my colleagues, relying on cases
they cited in SolarCity,17 find this language no more ef-
fective than generalized savings clauses that have been
discounted or disregarded by the Board. In these cases,
the Board has applied the sound principle that an other-
wise illegal rule will not be rendered lawful based on
language that would predictably be understood only by

15 Lutheran Heritage, 343 NLRB at 646–647.
16 Even if the Agreements were ambiguous, mere ambiguity is not
enough under Lutheran Heritage to condemn a rule as unlawful. The
word ambiguous means “capable of being understood in two or more
possible senses or ways.” http://www.merriam-webster.com/
dictionary/ambiguous. Thus, a rule is ambiguous if it could be read to
prohibit Section 7 activity, among other possible interpretations, re-
gardless of whether employees reasonably would read it that way.
17 363 NLRB No. 83, slip op. at 5 & fn. 18.
someone with specialized legal knowledge.18 However,
the Agreements’ relevant provisions merely require the
ability to read and understand the English language.19 In
this respect, I believe my colleagues turn precedent up-
side down. Every employee who reads English would
understand the Agreements have no impact on NLRB
charge filing, since this is precisely what the Agreements
say, while my colleagues devise an implausible interpre-
tation that, in my view, could only be advocated or
adopted by lawyers.
Contrary to the majority, I do not believe the Agree-
ments contain language that is vague, unexplained, or
ambiguous so as to warrant a finding that the Agree-
ments unlawfully interfere with an employee’s right to
file charges with the Board. Here, my colleagues ad-
vance two rationales, neither of which is sufficient, in my
view, to establish a violation of Section 8(a)(1).
First, my colleagues emphasize the Agreements’ lan-
guage broadly stating that “there will be no right or au-
thority for any dispute to be brought, heard or arbitrated
as a class, collective or representative action,” plus other
language excluding the filing of Board charges from this
broadly inclusive language “but only to the extent appli-
cable law permits access to such an agency notwithstand-
ing the existence of an agreement to arbitrate”—a clause
they characterize as “vague” and “unexplained.” But my
colleagues cannot and do not dispute that some claims
are excluded from the Agreements. After all, the
Agreements state that “[c]laims may be brought before
an administrative agency . . . to the extent applicable law

18 For example, in McDonnell Douglas Corp., 240 NLRB 794
(1979), the Board found a facially overbroad no-distribution rule un-
lawful despite an exception for distribution “protected by Section 7 of
the National Labor Relations Act.” Id. at 802. That exception was
insufficient to save the rule because an employee would need to know
what distribution Section 7 protects to understand what the exception
allows. Here, the Agreements’ language expressly permits NLRB
charge filing, and that language is self-explanatory. There is nothing
else an employee needs to know to understand it. In Hoot Winc, LLC,
363 NLRB No. 2 (2015), the only case my colleagues cited in SolarCity
that involved an arbitration agreement or filing charges with the Board,
the Board found an exclusion for “any dispute that cannot be arbitrated
as a matter of law” insufficient to inform employees that they could still
file Board charges on the basis that Board charges can be resolved
through arbitration. Id., slip op. at 1–2. And unlike here, the agree-
ment in Hoot Winc did not inform employees of their right to file Board
charges.
19 Although the Agreements list statutes and refer to some concepts
with which some employees may be unfamiliar, this is not materially
different from many collective-bargaining agreements, which are rou-
tinely deemed enforceable by the Board and the courts even if they
incorporate concepts that are expressed in “general and flexible terms,”
Archibald Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev.
1482, 1491 (1959), or are based on practices that may be “unknown,
except in hazy form, even to the negotiators,” Steelworkers v. Warrior
& Gulf Navigation Co., 363 U.S. 574, 580–581 (1960).
SECURITAS SECURITY SERVICES USA, INC. 9
permits access to such an agency notwithstanding the
existence of an agreement to arbitrate.” My colleagues’
point is that many employees would not know whether
the NLRB is an administrative agency access to which is
permitted by “applicable law . . . notwithstanding the
existence of an agreement to arbitrate.” I agree.
However, the majority pays scant attention to the very
next sentence, which explains that “[s]uch administrative
claims”—i.e., claims that “may be brought before an
administrative agency”—”include . . . claims or charges
brought before the . . . National Labor Relations Board”
(emphasis added). My colleagues’ analysis, though rely-
ing on Lutheran Heritage, contravenes principles set
forth in that decision, which stated it was improper to
rely on “particular phrases in isolation” and to “presume
improper interference with employee rights.”20 It simply
is not true that the language of the Agreements, read as a
whole, is “vague” or “unexplained.” No further explana-
tion is required to make clear that the Agreements protect
bringing “claims or charges . . . before . . . the National
Labor Relations Board.”
Second, even though the Agreements expressly state
employees retain the right to bring “claims or charges . . .
before . . . the National Labor Relations Board,” my col-
leagues make a three-stage argument21 that the class-
action waiver in the Agreements creates “an inherent
ambiguity” because (i) the Agreements provide that
“there will be no right or authority for any dispute to be
brought, heard or arbitrated as a class, collective or rep-
resentative action,” (ii) an NLRB charge sometimes
“purports to speak to a group or collective action,” and
(iii) the Agreements’ class-action waiver would interfere
with the right to file these types of Board charges. The
problem with this argument is its false, circular premise
that the Agreements’ class-action waiver can be con-
strued to interfere with the filing of Board charges, de-
spite other language in the Agreements that specifically
addresses Board charge filing and contradicts such a con-
struction. As noted previously, the Agreements categori-
cally permit the filing of Board charges—all Board
charges, including those that “purport[] to speak to a
group or collective action.” Here as well, only lawyers
could argue for the interpretation reflected in my col-
leagues’ three-stage “inherent ambiguity” analysis. As
the Fifth Circuit stated in Murphy Oil USA, Inc. v. NLRB,
above, “it would be unreasonable for an employee to

20 Lutheran Heritage, 343 NLRB at 646.
21 The majority presents this argument without separating it into
three stages. However, I believe the majority’s argument is difficult to
understand without breaking it into its component parts, and it consists
of the three elements set forth in the text.
construe the [Agreements] as prohibiting the filing of
Board charges when the agreement says the opposite.”
The protection afforded to Board charge filing is im-
portant because the filing of a charge is a prerequisite to
Board review of unfair labor practice issues.22 Conse-
quently, an agreement that prohibits filing Board charges
violates Section 8(a)(1) if entered into by an employer,
and Section 8(b)(1)(A) if entered into by a union.23 My
colleagues and I agree that the Board should safeguard
the right to file charges with the Board. In the instant
case, however, the Agreements clearly state that they do
not impose any restriction on the right to file Board
charges. Therefore, I believe the Board cannot reasona-
bly conclude that the Agreements unlawfully interfere
with Board charge filing in violation of Section 8(a)(1).
Accordingly, as to these issues and for the reasons dis-
cussed above, I respectfully dissent.24
Dated, Washington, D.C. May 11, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

22 See Chamber of Commerce of the United States v. NLRB, 721
F.3d 152, 162–163 (4th Cir. 2013) (“The NLRB serves expressly reac-
tive roles: conducting representation elections and resolving ULP
charges. . . . [The Board’s] processes . . . are not set in motion until a
party files a representation petition or a ULP charge.”).
23 Sec. 8(a)(1) makes it an unfair labor practice for any employer “to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7.” Sec. 8(b)(1)(A) makes it an unfair labor
practice for any union “to restrain or coerce . . . employees in the exer-
cise of the rights guaranteed in section 7.”
24 I join my colleagues in rejecting the Respondent’s contentions that
former Acting General Counsel Solomon was invalidly appointed and
without power to issue the complaint in this case, and that the Board
lacked a quorum when it issued its decision in D. R. Horton. I also
agree with my colleagues that the issue of whether the Agreements
interfere with NLRB charge filing was fully and fairly litigated.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain mandatory arbitration agree-
ments (the New Hire Agreement and the Current Em-
ployee Agreement) that our employees reasonably would
believe bar or restrict their right to file charges with the
National Labor Relations Board.
WE WILL NOT maintain or, in the case of the Current
Employee Agreement, enforce mandatory arbitration
agreements that require our employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration agreements
in all their forms, or revise them in all their forms to
make clear that the arbitration agreements do not consti-
tute waivers of your right to maintain employment-
related joint, class, or collective actions in all forums and
do not restrict your right to file charges with the National
Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration agreements in all their forms that
the arbitration agreements have been rescinded or revised
and, if revised, WE WILL provide them a copy of the rele-
vant revised agreement.
WE WILL notify the court in which Walter Linares,
Charles Dunaway and Sandra Blacksher filed their class
action lawsuit that we have rescinded or revised the
mandatory arbitration agreement upon which we based
our motion to amend the class definition to exclude cer-
tain employees, and WE WILL inform the court that we no
longer seek to amend the class definition to exclude such
employees.
WE WILL reimburse Walter Linares, Charles Dunaway,
Sandra Blacksher, and any other plaintiffs for any rea-
sonable attorneys’ fees and litigation expenses they may
have incurred in opposing our motion to amend the class
definition.
SECURITAS SECURITY SERVICES USA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/31–CA–072179 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Rudy l. Fong-Sandoval, Esq., for the Acting General Counsel.
William J. Emanuel, Esq. and Elizabeth D. Parry, Esq. (Littler
Mendelson, P.C.), of Los Angeles, California, for the Respond-
ent.
Dennis F. Moss, Esq., of Ventura California, Ira Spiro, Esq.
and Linh Hua, Esq. (Spiro Moore, LLP), of Los Angeles,
California, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. This
matter is based on a stipulated record. The initial charges in
this matter were filed on January 9, 2012. Since the submission
of this matter to me on June 18, 2013, briefs have been received
on about August 22, 2013, from counsel for the General Coun-
sel (General Counsel), counsel for the Respondent, and counsel
for the Charging Parties. Upon the stipulated record, and con-
sideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Securitas has been a corporation with
an office and place of business in Westlake Village, California.
During the year ending December 31, 2012, Securitas per-
formed services valued in excess of $50,000 in states other than
California. At all material times, Securitas has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent has violated and is violating Section 8(a)(1) of the Act
by maintaining two dispute resolution agreements; by attempt-
ing to enforce one of the agreements in state court litigation;
and by including language in both agreements that employees
reasonably could believe bar or restrict their right-to-file charg-
es with the National Labor Relations Board.
B. Facts
The parties entered into the following stipulation of facts:
1. At all material times, Securitas has been a corporation with
an office and place of business in Westlake Village, Califor-
SECURITAS SECURITY SERVICES USA, INC. 11
nia. During the year ending December 31, 2012, Securitas
performed services valued in excess of $50,000 in states other
than California. At all material times, Securitas has been an
employer engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Charging Parties in this proceeding, Charles Dunaway
(“Dunaway”) and Walter Linares (“Linares”), are former em-
ployees of Securitas. Dunaway was hired by Securitas on or
about November 28, 2006, and his employment was terminat-
ed on or about October 15, 2008. Linares was hired by Secu-
ritas on or about July 12, 2001, and his employment was ter-
minated on or about January 21, 2009.
3. On June 26, 2009, Dunaway and Linares, together with
one other individual, filed a class action in Los Angeles Coun-
ty Superior Court against Securitas on behalf of certain em-
ployees and former employees of Securitas in California.
This action, which is still pending, is entitled Walter Linares,
Charles Dunaway, and Sandra Blacksher, etc. v. Securitas Se-
curity Services USA, Inc., Case No. BC4 16555. Dunaway
and Linares were former employees of Securitas when this ac-
tion was filed.
4. On or about June 14, 2011, Securitas implemented a form
of agreement entitled Securitas USA Dispute Resolution
Agreement, which Securitas refers to informally as the new
hire agreement. This form has been distributed to employees
hired by Securitas in California after June 14, 2011. It does
not include an opt-out provision and the affected employees
have been required to sign it.
5. On or about June 14, 2011, Securitas also implemented a
form of agreement entitled Securitas Security Services USA,
Inc. Dispute Resolution Agreement, which Securitas refers to
informally as the current employee agreement. This form was
distributed to employees who were employed by Securitas in
California on June 14, 2011. The form states that employees
could opt out of the coverage of the agreement by calling a
toll free telephone number within 30 days after receiving it.
According to the records of Securitas, approximately 1393
employees in California opted out of the coverage of the
agreement, and approximately 12,787 employees in Califor-
nia did not opt out.
6. On January 9, 2012, Dunaway filed the unfair labor prac-
tice charge in Case 31–CA–072179 and Linares filed the
charge in Case 31–CA–072180, both alleging a violation of
Section 8(a)(1) of the Act. Securitas was served with copies
of both these charges on about January 13, 2012. On March
23, 2012, these charges were amended to add an allegation
that Section 8(a)(4) of the Act had been violated, but that alle-
gation was withdrawn from the charges on or about August
29, 2012. Securitas was served with copies of amended
charges on about March 28, 2012. On August 24, 2012,
Dunaway filed the charge in Case 31–CA–088081 and Lina-
res filed the charge in 31–CA–088082, both served on Re-
spondent on about August 28, 2012, both alleging a violation
of Section 8(a)(1) of the Act. Dunaway and Linares were
former employees of Securitas when all of these charges and
amendments were filed with the Board.
7. On August 21, 2012, Securitas filed a motion with the Su-
perior Court in the class action described above to amend the
class definition to exclude the employees who are subject to
arbitration under the current employee agreement.
ISSUE 1: Did Securitas violate Section 8(a)(1) of the
Act by maintaining two Dispute Resolution Agreements
since about June 1, 2011.
ISSUE 2: Did Securitas violate Section 8(a)(1) of the
Act by, since about August 21, 2012, enforcing one of its
Dispute Resolution Agreements when it asserted the
agreement in state court litigation brought against Securi-
tas by Charging Parties?
Beginning on June 14, 2011, and continuing thereafter the
new employee mandatory dispute resolution agreement entitled
Securitas USA Dispute Resolution Agreement (new hire
agreement) has been distributed to the Respondent’s newly
hired employees. They are required to sign it as a condition of
employment. It is a 2 1/3 page, single spaced document. It
begins as follows:
SECURITAS USA DISPUTE RESOLUTION AGREEMENT
1. This Agreement is governed by the Federal Arbitration Act,
9 U.S.C. § 1 et seq. and evidences a transaction involving
commerce. This Agreement applies to any dispute arising out
of or related to Employee’s employment with Securitas Secu-
rity Services USA, Inc. or one of its affiliates, subsidiaries or
parent companies (“Company) or termination of employment.
Nothing contained in this Agreement shall be construed to
prevent or excuse Employee from utilizing the Company’s
existing internal procedures for resolution of complaints, and
this Agreement is not intended to be a substitute for the utili-
zation of such procedures. Except as it otherwise provides,
this Agreement is intended to apply to the resolution of dis-
putes that otherwise would be resolved in a court of law, and
therefore this Agreement requires all such disputes to be re-
solved only by an arbitrator through final and binding arbitra-
tion and not by way of court or jury trial. Such disputes in-
clude without limitation disputes arising out of or relating to
interpretation or application of this Agreement, but not as to
the enforceability, revocability or validity of the Agreement or
any portion of the Agreement. The Agreement also applies,
without limitation, to disputes regarding the employment rela-
tionship, any city, county, state or federal wage- hour law,
trade secrets, unfair competition, compensation, breaks and
rest periods, uniform maintenance, training, termination, or
harassment and claims arising under the Uniform Trade Se-
crets Act, Civil Rights Act of 1964, Americans With Disabili-
ties Act, Age Discrimination in Employment Act, Family
Medical Leave Act, Fair Labor Standards Act, Employee Re-
tirement Income Security Act, Genetic Information Non- Dis-
crimination Act, and state statutes, if any, addressing the same
or similar subject matters, and all other state statutory and
common law claims (excluding workers compensation, state
disability insurance and unemployment insurance claims).
Claims may be brought before an administrative agency but
only to the extent applicable law permits access to such an
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agency notwithstanding the existence of an agreement to arbi-
trate.
Paragraph 4 of the agreement is as follows:
4. In arbitration, the parties will have the right to conduct ade-
quate civil discovery, bring dispositive motions, and present
witnesses and evidence as needed to present their cases and
defenses, and any disputes in this regard shall be resolved by
the Arbitrator. However, there will be no right or authority for
any dispute to be brought, heard or arbitrated as a class, col-
lective or representative action (“Class Action Waiver”).
Notwithstanding any other clause contained in this Agree-
ment, the preceding sentence shall not be severable from this
Agreement in any case in which the dispute to be arbitrated is
brought as a class, collective or representative action. Alt-
hough an Employee will not be retaliated against, disciplined
or threatened with discipline as a result of his or her exercis-
ing his or her rights under Section 7 of the National Labor Re-
lations Act by the filing of or participation in a class, collec-
tive or representative action in any forum, the Company may
lawfully seek enforcement of this Agreement and the Class
Action Waiver under the Federal Arbitration Act and seek
dismissal of such class, collective or representative actions or
claims. Notwithstanding any other clause contained in this
Agreement, any claim that all or part of the Class Action
Waiver is unenforceable, unconscionable, void or voidable
may be determined only by a court of competent jurisdiction
and not by an arbitrator.
The agreement concludes as follows:
8. This Agreement is the full and complete agreement relating
to the formal resolution of employment- related disputes. In
the event any portion of this Agreement is deemed unenforce-
able, the remainder of this Agreement will be enforceable. If
the Class Action Waiver is deemed to be unenforceable, the
Company and Employee agree that this Agreement is other-
wise silent as to any party’s ability to bring a class, collective
or representative action in arbitration.
I HAVE READ AND I UNDERSTAND AND AGREE TO
ALL OF THE TERMS CONTAINED IN THIS DISPUTE
RESOLUTION AGREEMENT.
Employee Name: _____________
Signature:
Date:____________
On about June 14, 2011, the Securitas Security Services
USA, Inc. Dispute Resolution Agreement (current employee
agreement) was distributed to all of the Respondent’s then cur-
rent employees (as noted, on and after that date only the new
hire agreement has been distributed to the employees). The
current employee agreement is a 3 1/2 page, single-spaced,
document. The initial pages are identical to the new employee
agreement, and the remainder of the agreement is as follows:
7. This Agreement is intended broadly to apply to all contro-
versies hereafter arising out of or related to your employment
relationship with the Company as well as an agreement to
submit to arbitration any existing controversy arising from or
related to your employment as is permitted under Section 2 of
the Federal Arbitration Act. In some cases, claims have been
made in court (non-arbitration) litigation on behalf of Compa-
ny employees in which those employees desire to represent
claims of other employees in class, collective or other repre-
sentative actions (referred to as ‘Actions”). If you are a named
party plaintiff, or have joined as a party plaintiff this Agree-
ment shall not apply to those Actions, and you may continue
to participate in them without regard to this Agreement. If
you have retained counsel with respect to any claim that may
be subject to this agreement you should consult that counsel.
You may consult private counsel with respect to any aspect of
this Agreement.
This Agreement, however, shall apply to all Actions in which
you are not a plaintiff or part of a certified class. The Compa-
ny is aware of the following Actions in-which class or repre-
sentative claims have been alleged, which generally involve
employee claims for unpaid wages:
California: Michael J. Holland, David Richardson and Gerald-
ine Evans v. Securitas Security Services USA, Inc., filed
7/18/2008, Los Angeles Superior Court Case No. BC394708;
Walter Linares, Charles Dunaway and Sandra Blacksher v.
Securitas Security Services USA, Inc., 6/26/2009; Los Ange-
les Superior Court Case No. BC432135; Christine Brisco v.
Securitas Security Services USA, Inc., filed 2/18/2010, Los
Angeles Superior Court Case No. BC4165555; Stephen
Goodwin; William Wolff; Christopher Coffelt; Randall Der,
Donna Forman v. Securitas Security Services USA, Inc., filed
9/25/2009, UISDC, Eastern District of California Case No.
2:09-. CV-02685-KJM-DAD; Forrest Huff v. Securitas Secu-
rity Services USA, Inc., filed 7/12/2010, Santa Clara Superior
Court Case No. 110O-CV-1 72614; Marvin Melara v. Securi-
tas Security Services USA, Inc., filed 10/26/2010, Los Ange-
les Superior Court Case No. BC448078; Miguel Luna Cande-
las v. Securitas Security Services USA, Inc., filed 5/5/2011,
Los Angeles Superior Court Case No. BC481J352.
Florida: Jean Loriston v. Securitas Security Services USA,
Inc., filed 12/30/2010, UISDC, Middle District of Florida
Case No. 6:10-CVO-01956-PCF-KRS; Kenisha Adams v Se-
curitas Security Services USA, Inc., filed 5/23/2011, USDC,
Middle District of Florida Case No. 1:1 1-CV-21 858- PAS-
KRS
Illinois: Crystal Howard, Paul Galloway, Robert Newson and
Alvan Young v. Securitas Security Services USA, Inc.; filed
on 1/20/2009. USOC, Northern District of Illinois Case No.
08-C-2746; Stephanie Hawkins, Darsemia Jackson and Menja
Wallace v. Securitas Security Services USA, Inc., filed
5/12/2008, USDC, Northern District of Illinois Case No. 09-
C-3633
Iowa and Wisconsin: Jesse J. Molyneux and John Stellmach
(WI) v. Securitas Security Services USA, Inc., filed 12/9/201
0, USDC, Southern District of Iowa Case No. 4: 10-CV-
00588-JAJ-TJS
Pennsylvania: Frankie Williams and Kimberly Ord, filed
12/10/2010, USDC, Eastern District of Pennsylvania Case
SECURITAS SECURITY SERVICES USA, INC. 13
No. 2:1 0-CV-071 81 -HB
If you are not a named plaintiff, have not joined as a plaintiff
or are not part of a certified class in any of these Actions but
would like to potentially participate in one or more of the Ac-
tions as a class member or plaintiff, you may opt out of this
Agreement by following the procedure set forth in Section 9,
below. By not opting out of this Agreement as set forth in
Section 9 below, however, you will be giving up the right to
represent others in litigation and the right to participate in any
class, collective or representative action in a court of law, in-
cluding the Actions enumerated above in which you are not a
named plaintiff, have not joined as a plaintiff or are not part of
a certified class. If you choose not to opt out of this Agree-
ment, you will be able to arbitrate whatever individual claims
you have against the Company. Whatever you decide, you
will not be retaliated against, disciplined or threatened with
discipline if you choose to opt out of this Agreement or
choose not to opt out of this Agreement. The choice is yours.
8. You may not wish to be subject to this Agreement. If so,
you may opt-out of this Agreement. If you wish to opt-out,
you must call the following toll free number 877-248-2721 in
order to opt-out. In order to be effective, you must call the toll
free number and opt-out within 30 days of your receipt of this
Agreement. An Employee who timely opts out as provided in
this paragraph will not be subject to any adverse employment
action as a consequence of that decision and may pursue
available legal remedies without regard to this Agreement.
Should an Employee not opt out of this Agreement within 30
days of the Employee’s receipt of this Agreement, continuing
the Employee’s employment constitutes mutual acceptance of
the terms of this Agreement by Employee and the Company.
An Employee has the right to consult with counsel of the Em-
ployee’s choice concerning this Agreement.
9. It is against Company policy for any Employee to be sub-
ject to retaliation if he or she exercises his or her right to assert
claims under this Agreement. If any Employee believes that
he or she has been retaliated against by anyone at the Compa-
ny, the Employee should immediately report this to the Hu-
man Resources Department.
10. This Agreement is the full and complete agreement relat-
ing to the formal resolution of employment-related disputes.
In the event any portion of this Agreement is deemed unen-
forceable, the remainder of this Agreement will be enforcea-
ble. If the Class Action Waiver is deemed to be unenforcea-
ble, the Company and Employee agree that this Agreement is
otherwise silent as to any party’s ability to bring a class, col-
lective or representative action in arbitration.
The fifth page of the agreement contains only the concluding
language:
ACKNOWLEDGMENT OF RECEIPT OF THE
SECURITAS SECURITY SERVICES USA, INC.
DISPUTE RESOLUTION AGREEMENT
BY SIGNING BELOW, I AM ACKNOWLEDGING
RECEIPT OF THE SECURITAS SECURITY SERVICES
USA, INC. DISPUTE RESOLUTION AGREEMENT,
EFFECTIVE IMMEDIATELY.
Employee Name:_____________
Signature:
Date:____________
Witness Name:
Signature:
III. ANALYSIS AND CONCLUSIONS
The Respondent maintains the charges are time barred by
Section 10(b) of the Act, having been filed more than 6 months
after June 14, 2011, the date both hiring agreements were im-
plemented. Moreover, the Respondent maintains there is no
record evidence that the new hire agreement, unlike the current
employee agreement, has been enforced or has even continued
in existence since its implementation date. The stipulation of
the parties states that the new hire agreement “has been distrib-
uted to employees hired by Securitas in California after June
14, 2011.” This language is sufficient to show that the intent of
the parties was to stipulate that the Respondent has continued
and is continuing to distribute the agreement to all new hires to
the present date. I so find. As, I find, both agreements are
invalid and currently remain in effect, and, in addition, the Re-
spondent is currently attempting to enforce the current employ-
ee agreement before the Los Angeles County Superior Court, it
is clear that the charges are not time barred with regard to either
agreement. Control Services, 305 NLRB 435, 435 fn. 2, 442
(1991), enfd. mem. 961 F2d 1568 (3rd Cir. 1992); The Guard
Publishing Co., 351 NLRB 1110, 1110 fn. 2 (2007).
D. R. Horton, Inc., 357 NLRB 2277 (2012), is the control-
ling Board decision in this matter. It is currently pending re-
view before the Fifth Circuit Court of Appeals, having been
argued on February 5, 2013. While the Respondent maintains
that D. R. Horton was wrongly decided, I am required to follow
it unless reversed by the Supreme Court. Waco, Inc., 273
NLRB 746, 749 fn. 14 (1984); Los Angeles New Hospital,
244NLRB 960, 962 fn. 4 (1979), enfd. 640 F2d 1017 (9th Cir.
1981); Pathmark Stores, Inc., 342 NLRB 378 fn. 1(2004). The
Respondent maintains that two Supreme Court cases issued
subsequent to the Board’s D. R. Horton decision, CompuCredit
Corp. v. Greenwood, 132 S.Ct. 665 (2012), and American Ex-
press Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013),
establish precedent that effectively overrules D. R. Horton. I
find no merit to the Respondent’s contention, as the cited cases
do not present issues pertaining to the interrelationship between
the National Labor Relations Act (NLRA) and the Federal Ar-
bitration Act (FAA).
The Board determined in D. R. Horton that “employers may
not compel employees to waive their NLRA right to collective-
ly pursue litigation of employment claims in all forums arbitral
and judicial.” 357 NLRB 2277, 2288 (2012). The Respond-
ent’s new hire agreement does precisely that. Accordingly, it is
unlawful.
The Respondent maintains that the D. R. Horton decision is
limited to arbitration agreements imposed as a mandatory con-
dition of employment; accordingly, because arbitration under
the current employee agreement is voluntary it is therefore not
a mandatory condition of employment and should be found to
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be lawful. In making this argument the Respondent relies on
footnote 28 of D. R. Horton:
[W]e do not reach the more difficult question…of…whether,
if arbitration is a mutually beneficial means of dispute resolu-
tion, an employer can enter into an agreement that is not a
condition of employment with an individual employee to re-
solve either a particular dispute or all potential employment
disputes through non-class arbitration rather than litigation in
court. Id. at p. 13, n 28.
The problems with the Respondent’s argument are twofold.
First, the current employee agreement, standing alone, is a
mandatory condition of employment because, as stated on page
5, it is “effective immediately,” that is, before the employee has
made any decision to opt out of arbitration; and the decision-
making process itself is also a mandatory condition of employ-
ment as it is required of employees and is not simply a ministe-
rial, relatively inconsequential matter. Here, employees, as a
condition of continued employment, are required to make a
decision, under time-sensitive constraints, regarding certain
significant class action rights they possess under the NLRA: do
they want to preserve them so that they may be able to take
advantage of them in the future, or forfeit them in favor of arbi-
tration. Whichever alternative they choose impacts their em-
ployment relationship with the Respondent for the remainder of
their employment, and, for those who do not opt out, precludes
them from determining whether class action is more advanta-
geous than arbitration in any given dispute.1 That the Respond-
ent recognizes the employee is confronted with a difficult di-
lemma is clearly reflected by the language in paragraph 8 of the
agreement, the opt-out paragraph, as the employee is told he or
she “has the right to consult with counsel of the Employee’s
choice concerning this Agreement.”2 Moreover, the employ-
ee’s understanding that default arbitration is the Respondent’s
dispute resolution preference of choice makes the opt-out deci-
sion even more formidable; thus, the employee may be legiti-
mately concerned that such matters as promotions, wage in-
creases, and even tenure may be dependent on whether, for
example, one of the candidates for promotion has stated a pref-
erence for class action status through the requisite opting out
process in contravention of the Respondent’s clear arbitration
preference.3

1 In contrast, a voluntary arbitration agreement which is not a man-
datory condition of employment might be one which an employee
initiates, and which, in order to resolve a particular dispute, the em-
ployee and employer agree upon as a mutually beneficial means of
dispute resolution.
2 The employee is in the vulnerable position of being required to de-
cide in advance of any particular dispute which method of dispute
resolution might be more advantageous—clearly a “flip of the coin”
decision. In effect, as collective activity and union activity are equally
protected by the NLRA, this is no different than requiring an employee
to currently decide whether he or she may exercise the right to seek
union representation in the future.
3 Recognizing that this could be a legitimate concern, the Respond-
ent has inserted language in par. 8 of the agreement, the opt-out para-
graph, purportedly designed to lessen the employee’s apprehension, as
follows: “An Employee who timely opts out as provided in this para-
graph will not be subject to any adverse employment action as a conse-
The Respondent contends that by choosing to not opt out and
thereby automatically agreeing to the default arbitration alterna-
tive, the employee is simply exercising a right under the NLRA
to refrain from engaging in concerted activity. The difficulty
with this argument is that if the employee does not opt out, the
current employee agreement requires the employee to forego
participation in all future class action lawsuits, and is irrevoca-
ble. Therefore, the employee is precluded from ever engaging
in class action lawsuits for the duration of his or her employ-
ment. That the employee is permanently locked in to this deci-
sion and, periodically, or upon reflection or changed circum-
stances, may not change his or her mind, places a severe re-
striction on the right to engage in concerted activity guaranteed
by Section 7 of the NLRA, and is unlawful. Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), enfd. 354 F.2d 534 (6th
Cir. 2004).
Since June 14, 2011, and continuing to date the Respondent
has arbitrarily established two classes of employees: those who
have opted out of arbitration in favor of class action and those
who, by default, have not or were given no option to do so.
The employees who have not opted out are an impediment to
the very purpose of concerted activity—the strategic and eco-
nomic strength in numbers—and the Respondent is depriving
the opted out employees of the right to their collective assis-
tance in ever increasing numbers as no new hire since June 14,
2011, has been able to opt out. Accordingly, whether or not
then current employees were given a legitimate opt-out option
in the current employee agreement does not negate the fact that
opted out employees are precluded from engaging in class-
action litigation with all other employees and, by design, are
being increasingly marginalized by the Respondent’s unlawful
conduct in maintaining the new hire agreement and enforcing
the current employee agreement.
On the basis of the foregoing I conclude that the Respond-
ent’s current employee agreement is unlawful.4 Concerted
activity, with or without the election of a union, is the keystone
of the NLRA,5 and here, without overtly precluding class-
action lawsuits by mandate, the Respondent is attempting to

quence of that decision and may pursue available legal remedies with-
out regard to this Agreement.” As a practical matter, this disclaimer of
any adverse employment action is insufficient to eliminate the real
concerns of an understandably skeptical employee; in fact, it may
heighten such concerns or cause employees who had no such concerns
to begin with to weigh the benefits of class action against the potential
adverse consequences of opting out.
4 The Respondent, in its brief, cites numerous non-Board Federal
cases in which arbitration agreements with opt-out provisions were not
invalidated. For example, in Davis v. O’Melveny & Meyers, 485 F.3d
1066, 1073 (9th Cir. 2007), the court found that an arbitration agree-
ment was valid because employees had a meaningful opportunity to opt
out of the arbitration provision. However, that case and the other cases
cited by the Respondent do not address the validity of opt-out provi-
sions in relation to employee’s rights under the NLRA. Accordingly,
the cited cases are inapposite.
5 D. R. Horton, supra at 2279: “These forms of collective efforts to
redress workplace wrongs or improve workplace conditions are at the
core of what Congress intended to protect by adopting the broad lan-
guage of Section 7. Such conduct is not peripheral but central to the
Act’s purposes.”
SECURITAS SECURITY SERVICES USA, INC. 15
make such class action concerted activity among its employees
as exacting as possible. The requirement that employees must
make a difficult, and immediate (within 30 days), and irrevoca-
ble choice between class action concerted activity or individual
arbitration, and that those opting out must reassert rights they
already have and must, to their possible detriment, so advise the
Respondent, places a significant and unnecessary burden on all
employees, whichever alternative they may choose; and, in
addition, as noted, maintaining the new hire agreement in con-
junction with the current employee agreement places an ever-
increasing additional undue burden on employees who opt for
collective action.
Clearly, the current employee agreement is intended to re-
strain and limit the exercise of Section 7 rights, and the Re-
spondent is applying it by attempting to restrict the class action
lawsuit filed by the Charging Parties. It is therefore unlawful
under Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). The cases cited by the Board in D. R. Horton in sup-
port of its determination that mandatory arbitration agreements
are unlawful are equally applicable to the current employee
agreement with its “voluntary” opt-out provision.
Secondly, regarding the Respondent’s contention that the ar-
bitration alternative is “voluntary,” insofar as the stipulated
record shows employees are not required to read the current
employee agreement; and even if they begin reading it the opt-
out language does not appear until page 4. Thus, I find, any
opt-out provision is illusory at best. While the new hire agree-
ment, mandating arbitration and containing no opt-out option,
requires new hires to affirm that “I have read and I understand
and agree to all of the terms contained in this dispute resolution
agreement,” the employees who have been given the current
employee agreement with the opt-out option and who must
exercise it in order to preserve Section 7class action rights un-
der the NLRA, are simply advised as follows: “By signing
below, I am acknowledging receipt of the Securitas Security
Services USA, Inc. dispute resolution agreement, effective
immediately.” While they are required to acknowledge receipt
of the agreement, they are not required to read, understand, or
agree to it, and are told it is “effective immediately.” Accord-
ingly, it is reasonable to presume that the employees would not
even be aware of any opt-out option, and would reasonably
believe that “effective immediately” the dispute resolution
agreement was imposed on them, as well as the new hires,6 as a
mandatory condition of employment.7
The Respondent maintains the opt-out provision is not illuso-
ry, as evidenced by the fact that, according to the records of
Securitas, approximately 1393 employees in California opted
out of the coverage of the agreement, and approximately 12,787
employees in California, or about 90 percent of the workforce,
did not opt out. These numbers are of little value in assessing

6 There is no showing that the current employees and the new hires
understood that they were not being given the identical agreement.
7 Indeed, this very agreement was found unenforceable in an FLSA
class action matter in Williams v. Securitas Security Services, 2011
WL 2713741 (E. D. Pa. 2011), the court stating, “ Quite simply, this
Agreement stands the concept of fair dealing on its head and is de-
signed to thwart employees of Securitas from participating in the law-
suit.”
the merits of Respondent’s argument, as the employees were
simply required to sign for the receipt of the document but were
not required to acknowledge that they read, understood, or
agreed to it; accordingly, the Respondent is not in a position to
argue that 90 per cent of its California employees made a con-
sidered decision to forego their class action rights under the
NLRA by not opting out, or even understood they had the right
to do so.
Accordingly, I find that, as with the new hire agreement, the
holding in D. R. Horton is directly applicable to the current
employee agreement, and that the agreement is unlawful solely
because there is no attempt made by the Respondent to ensure
that employees are cognizant of the fact that it is anything but a
mandatory arbitration agreement. By this conduct the Re-
spondent has violated and is violating Section 8(a)(1) of the
Act.
Moreover, consistent with the foregoing and as alleged in the
complaint, I find that the Respondent’s motion to the court to
amend the class definition to exclude employees who are sub-
ject to the current employee agreement also violates Section
8(a)(1) of the Act. Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731, 737 fn. 5 (1983); Manno Electric, 321 NLRB 278,
298 (1996), enfd. per curiam mem. 127 F.3d 34 (5th Cir. 1997).
The General Counsel also contends that both arbitration
agreements violate Section 8(a)(1) of the Act because of their
ambiguity. Thus, the General Counsel maintains that employ-
ees reading the documents would reasonably construe the lan-
guage to prohibit the filing of unfair labor practice charges with
the Board.
Both agreements, at Section 1, supra, state that the mandato-
ry agreement to arbitrate disputes “applies to any dispute aris-
ing out of or related to Employee’s employment,” and conclude
with the statement that “Claims may be brought before an ad-
ministrative agency but only to the extent applicable law per-
mits access to such an agency notwithstanding the existence of
an agreement to arbitrate.” Read together, it is perfectly obvi-
ous that employees would construe the latter language to place
an ambiguous limitation and restriction on “claims” and “ac-
cess” to the Board, and that this language would reasonably
tend to inhibit the filing of unfair labor practice charges with
the Board. Accordingly, I find that this language is unlawful in
violation of Section 8(a)(1) of the Act. U-Haul Co. of Califor-
nia, 347 NLRB 375, 377–378 (2006), enfd. mem. 255 F. Appx.
527 (D.C. Cir. 2007); Bill’s Electric, Inc., 350 NLRB 292, 296
(2007); Dish Network Corp., 358 NLRB 174, 180–181 (2012);
University Medical Center, 335 NLRB 1318, 1320–1322
(2001), enf. denied in pertinent part, 335 F.3d 1079 (D.C. Cir.
2003).
CONCLUSIONS OF LAW AND RECOMMENDATIONS
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent has violated Section 8(a) (1) of the Act
as alleged.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it be required to cease
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and desist therefrom and from in any other like or related man-
ner interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act. I shall also
recommend the posting of an appropriate notice, attached here-
to as “Appendix,” at all locations where the agreements have
been in effect. See, e.g., U-Haul Co. of California, 347 NLRB
375 fn. 2 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
ORDER8
The Respondent, Securitas Security Services USA, Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the mandatory arbitration agreement, effec-
tive on or about June 14, 2011, that requires employees to
waive their right to maintain class or collective action in all
forums, whether arbitral or judicial.
(b) Maintaining the arbitration agreement, effective on or
about June 14, 2011, that requires employees to either exercise
the opt-out provision or become subject to an arbitration pro-
cess that precludes employees from maintaining class or collec-
tive action in all forums, whether arbitral or judicial.
(c) Maintaining ambiguously worked arbitration agreements
that would tend to inhibit the filing of unfair labor practice
charges with the Board.
(d) Restricting the right of employees to engage in concerted
activity by attempting to enforce unlawful arbitration agree-
ments in judicial forums.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action, which is necessary
to effectuate the purposes of the Act.
(a) Rescind or revise the mandatory arbitration agreement,
effective on or about June 14, 2011, that requires employees to
waive their right to maintain class or collective action in all
forums, whether arbitral or judicial.
(b) Rescind or revise the arbitration agreement, effective on
or about June 14, 2011, that requires employees to either exer-
cise the opt-out provision or become subject to an arbitration
process that precludes employees from maintaining class or
collective action in all forums, whether arbitral or judicial.
(c) Advise all affected employees, by all means that employ-
ees are customarily advised of matters pertaining to their terms
and conditions of employment, that the agreements have been
rescinded or revised and that employees are no longer prohibit-
ed from bringing and participating in class action lawsuits
against the Respondent.
(d) Withdraw all objections filed in judicial forums to the
right of employees to engage in class or collective action.
(e) Within 14 days after service by the Region, post at all lo-
cations where notices to employees are customarily posted, and
transmit to employees by all means that employees are custom-
arily advised of matters pertaining to their terms and conditions

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Ru les and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
of employment, copies of the attached notice marked “Appen-
dix.” Copies of the notice, on forms provided by the Regional
Director for Region 31, after being duly signed by Respond-
ent’s representative, shall be posted and electronically transmit-
ted to employees immediately upon receipt thereof, and shall
remain posted for 60 consecutive days thereafter. Reasonable
steps shall be taken by Respondent to ensure that the posted
notices are not altered, defaced, or covered by any other mate-
rial.
(f) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 31 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.
Dated, Washington, D.C. November 8, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
WE WILL NOT maintain a mandatory arbitration agreement
that waives the right to maintain class or collective actions in
all forums, whether arbitral or judicial.
WE WILL NOT maintain an arbitration agreement that requires
employees to either exercise the opt-out provision or become
subject to an arbitration process that precludes employees from
maintaining class or collective action in all forums, whether
arbitral or judicial.
WE WILL NOT maintain arbitration agreements that employees
reasonably could believe bar or restrict their right to file charg-
es with the National Labor Relations Board.
WE WILL NOT interfere with the right of employees to engage
in concerted activity by attempting to enforce unlawful arbitra-
tion agreements in judicial forums and WE WILL withdraw all
objections thereto.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL rescind or revise the aforementioned arbitration
agreements to make it clear to employees that the agreements
SECURITAS SECURITY SERVICES USA, INC. 17
do not constitute a waiver of their right in all forums to main-
tain class or collective actions and do not restrict employees’
right to file charges with the National Labor Relations Board.
WE WILL notify employees of the rescinded or revised
agreements, including providing them with a copy of the re-
vised agreements or specific notification that the agreements
have been rescinded.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-072179 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
SECURITAS SECURITY SERVICES USA, INC.