Securitas Security Services USA, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 8, 2013

31-CA-072179 (N.L.R.B. Nov. 8, 2013)

JD–(SF)–52–13
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SECURITAS SECURITY SERVICES USA,
INC.
and Cases 31-CA-072179
31-CA-088081

CHARLES DUNAWAY, an Individual
and Cases 31-CA-072180
31-CA-088082
WALTER LINARES, an Individual
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 Respondent.
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 Counsel (General Counsel), counsel for the Respondent, and
counsel
JD–(SF)–52–13
2
for the Charging Parties. Upon the stipulated record, and consideration of the briefs submitted, I
make the following
Findings of Fact
5
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 10
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 Section
2(2), (6), and (7) of the National Labor Relations Act.
15
II. Alleged Unfair Labor Practices
A. Issues
The principal issues in this proceeding are whether the Respondent has violated and is 20
violating Section 8(a)(1) of the Act by maintaining two dispute resolution agreements; by
attempting 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
charges with the National Labor Relations Board.
25
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 30
business in Westlake Village, California. 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.
35
2. The Charging Parties in this proceeding, Charles Dunaway ("Dunaway") and
Walter Linares ("Linares"), are former employees of Securitas. Dunaway was hired by
Securitas on or about November 28, 2006, and his employment was terminated on or
about October 15, 2008. Linares was hired by Securitas on or about July 12, 2001, and
his employment was terminated on or about January 21, 2009.40
3. On June 26, 2009, Dunaway and Linares, together with one other individual, filed
a class action in Los Angeles County Superior Court against Securitas on behalf of
certain employees and former employees of Securitas in California. This action, which is
still pending, is entitled Walter Linares, Charles Dunaway, and Sandra Blacksher, etc. v. 45
Securitas Security Services USA, Inc., Case No. BC4 16555. Dunaway and Linares
were former employees of Securitas when this action 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 50
the new hire agreement. This form has been distributed to employees hired by
JD–(SF)–52–13
3
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 5
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 10
coverage of the agreement, and approximately 12,787 employees in California did not
opt out.
6. On January 9, 2012, Dunaway filed the unfair labor practice charge in Case 31–
CA–072179 and Linares filed the charge in Case 31–CA–072180, both alleging a 15
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 allegation
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, 20
Dunaway filed the charge in Case 31–CA–088081 and Linares filed the charge in 31–
CA–088082, both served on Respondent 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.
25
7. On August 21, 2012, Securitas filed a motion with the Superior 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 by30
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 Dispute35
Resolution Agreements when it asserted the agreement in state
court litigation brought against Securitas by Charging Parties?
Beginning on June 14, 2011, and continuing thereafter the new employee mandatory 40
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:
45
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 Security Services 50
USA, Inc. or one of its affiliates, subsidiaries or parent companies ("Company) or
JD–(SF)–52–13
4
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
utilization of such procedures. Except as it otherwise provides, this Agreement is
intended to apply to the resolution of disputes that otherwise would be resolved in a 5
court of law, and therefore this Agreement 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.
Such disputes include 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 10
also applies, without limitation, to disputes regarding the employment relationship, 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 Secrets Act, Civil Rights Act of
1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family 15
Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security
Act, Genetic Information Non- Discrimination 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 20
the extent applicable law permits access to such an agency notwithstanding the
existence of an agreement to arbitrate.
Paragraph 4 of the agreement is as follows:
25
4. In arbitration, the parties will have the right to conduct adequate 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, collective or representative action ("Class Action Waiver"). 30
Notwithstanding any other clause contained in this Agreement, 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. Although an
Employee will not be retaliated against, disciplined or threatened with discipline as a
result of his or her exercising his or her rights under Section 7 of the National Labor 35
Relations Act by the filing of or participation in a class, collective 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 40
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:
45
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 unenforceable, 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 otherwise silent as to any party's ability to bring a class, collective or 50
representative action in arbitration.
JD–(SF)–52–13
5
I HAVE READ AND I UNDERSTAND AND AGREE TO ALL OF THE TERMS
CONTAINED IN THIS DISPUTE RESOLUTION AGREEMENT.
Employee Name: _____________5
Signature:
Date:____________
On about June 14, 2011, the Securitas Security Services USA, Inc. Dispute Resolution 10
Agreement (current employee agreement) was distributed to all of the Respondent’s then
current 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:15
7. This Agreement is intended broadly to apply to all controversies 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 20
cases, claims have been made in court (non-arbitration) litigation on behalf of Company
employees in which those employees desire to represent claims of other employees in
class, collective or other representative actions (referred to as 'Actions"). If you are a
named party plaintiff, or have joined as a party plaintiff this Agreement shall not apply to
those Actions, and you may continue to participate in them without regard to this 25
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 30
part of a certified class. The Company is aware of the following Actions in-which class or
representative claims have been alleged, which generally involve employee claims for
unpaid wages:
California: Michael J. Holland, David Richardson and Geraldine Evans v. Securitas 35
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 Angeles 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; 40
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 Security Services USA, Inc., filed 7/12/2010, Santa
Clara Superior Court Case No. 110O-CV-1 72614; Marvin Melara v. Securitas Security
Services USA, Inc., filed 10/26/2010, Los Angeles Superior Court Case No. BC448078; 45
Miguel Luna Candelas 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 50
JD–(SF)–52–13
6
v Securitas 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 5
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 10
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 No. 2:1 0-CV-071 81 -HB15
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 Actions 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 20
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, including 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 Agreement, you will be able to arbitrate whatever individual 25
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 30
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 35
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
Employee's choice concerning this Agreement.40
9. It is against Company policy for any Employee to be subject 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 Company, the
Employee should immediately report this to the Human Resources Department.45
10. 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 unenforceable, the remainder of this Agreement will be enforceable. If the Class
Action Waiver is deemed to be unenforceable, the Company and Employee agree that 50
JD–(SF)–52–13
7
this Agreement is otherwise silent as to any party's ability to bring a class, collective or
representative action in arbitration.
The fifth page of the agreement contains only the concluding language:
5
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, 10
EFFECTIVE IMMEDIATELY.
Employee Name:_____________
Signature:
Date:____________15
Witness Name:
Signature:
20
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 implemented. Moreover, the Respondent maintains there is no record evidence that the 25
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 distributed 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 30
to the present date. I so find. As, I find, both agreements are invalid and currently remain in
effect, and, in addition, the Respondent is currently attempting to enforce the current employee
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, 35
1110 fn. 2 (2007).
D. R. Horton, Inc., 357 NLRB No, 184 (2012), is the controlling Board decision in this
matter. It is currently pending review before the Fifth Circuit Court of Appeals, having been
argued on February 5, 2013. While the Respondent maintains that D. R. Horton was wrongly 40
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 45
Express 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 Arbitration Act (FAA).
50
JD–(SF)–52–13
8
The Board determined in D. R. Horton that “employers may not compel employees to
waive their NLRA right to collectively pursue litigation of employment claims in all forums arbitral
and judicial.” 357 NLRB No. 184, slip op. at p. 12 (2012). The Respondent’s new hire
agreement does precisely that. Accordingly, it is unlawful.
5
The Respondent maintains that the D. R. Horton decision is limited to arbitration
agreements imposed as a mandatory condition 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 be lawful. In making this argument the Respondent relies
on footnote 28 of D.R. Horton: 10
[W]e do not reach the more difficult question…of…whether, if arbitration is a
mutually beneficial means of dispute resolution, an employer can enter into an
agreement that is not a condition of employment with an individual employee to
resolve either a particular dispute or all potential employment disputes through 15
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 20
out of arbitration; and the decision-making process itself is also a mandatory condition of
employment as it is required of employees and is not simply a ministerial, 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 25
able to take advantage of them in the future, or forfeit them in favor of arbitration. Whichever
alternative they choose impacts their employment 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 advantageous than arbitration in any given dispute.1
That the Respondent recognizes the employee is confronted with a difficult dilemma is clearly 30
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 employee’s understanding that default arbitration is
the Respondent’s dispute resolution preference of choice makes the opt-out decision even more
formidable; thus, the employee may be legitimately concerned that such matters as promotions, 35
wage increases, and even tenure may be dependent on whether, for example, one of the
candidates for promotion has stated a preference 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 mandatory condition of
employment might be one which an employee initiates, and which, in order to resolve a
particular dispute, the employee and employer agree upon as a mutually beneficial means of
dispute resolution.
2
The employee is in the vulnerable position of being required to decide 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 Respondent has inserted language in
par. 8 of the agreement, the opt-out paragraph, purportedly designed to lessen the employee’s
apprehension, as follows: “An Employee who timely opts out as provided in this paragraph will
JD–(SF)–52–13
9
The Respondent contends that by choosing to not opt out and thereby automatically
agreeing to the default arbitration alternative, 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 5
forego participation in all future class action lawsuits, and is irrevocable. Therefore, the
employee is precluded from ever engaging in class action lawsuits for the duration of his or her
employment. That the employee is permanently locked in to this decision and, periodically, or
upon reflection or changed circumstances, may not change his or her mind, places a severe
restriction on the right to engage in concerted activity guaranteed by Section 7 of the NLRA, and 10
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 15
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
economic strength in numbers—and the Respondent is depriving the opted out employees of
the right to their collective assistance 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 given20
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..
25
On the basis of the foregoing I conclude that the Respondent’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 make such class action concerted activity among its employees
as exacting as possible. The requirement that employees must make a difficult, and immediate 30
(within 30 days), and irrevocable 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

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.” 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 agreement 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 provisions in relation to employee’s rights under the NLRA. Accordingly, the cited cases
are inapposite.
5
D. R. Horton, supra, slip op. p. 3: “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 language of Section 7. Such conduct is not peripheral but central to the
Act’s purposes.”
JD–(SF)–52–13
10
all employees, whichever alternative they may choose; and, in addition, as noted, maintaining
the new hire agreement in conjunction 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 restrain and limit the exercise of 5
Section 7 rights, and the Respondent 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 support of its
determination that mandatory arbitration agreements are unlawful are equally applicable to the
current employee agreement with its “voluntary” opt-out provision. 10

Secondly, regarding the Respondent’s contention that the arbitration 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 15
agreement, 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
under the NLRA, are simply advised as follows: “By signing below, I am acknowledging receipt 20
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.”
Accordingly, 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 25
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 illusory, as evidenced by the fact
that, according to the records of Securitas, approximately 1393 employees in California opted 30
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 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 35
cent of its California employees made a considered 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 40
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
Respondent has violated and is violating Section 8(a)(1) of the Act.

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 designed to
thwart employees of Securitas from participating in the lawsuit.”
JD–(SF)–52–13
11
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
subject 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).5
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
employees reading the documents would reasonably construe the language to prohibit the filing
of unfair labor practice charges with the Board. 10
Both agreements, at Section 1, supra, state that the mandatory agreement to arbitrate
disputes “applies to any dispute arising out of or related to Employee's employment,” and
conclude with the statement that “Claims may be brought before an administrative agency but
only to the extent applicable law permits access to such an agency notwithstanding the 15
existence of an agreement to arbitrate.” Read together, it is perfectly obvious that employees
would construe the latter language to place an ambiguous limitation and restriction on “claims”
and “access” 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 California, 347 NLRB 375, 377–378 20
(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 No. 29, slip op. at 7–8 (2012); University Medical
Center, 335 NLRB 1318, 1320–1322 (2001), enf. denied in pertinent part, 335 F.3d 1079 (D.C.
Cir. 2003).
25
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.30
2. The Respondent has violated Section 8(a) (1) of the Act as alleged.
The Remedy35
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that it be required to cease and desist therefrom and from in any other like or
related manner 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, 40
attached hereto 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).
45
JD–(SF)–52–13
12
ORDER8
The Respondent, Securitas Security Services USA, Inc., its officers, agents, successors,
and assigns, shall
5
1. Cease and desist from
(a) Maintaining 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.10
(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 process that precludes employees from
maintaining class or collective action in all forums, whether arbitral or 15
judicial.
(c) Maintaining ambiguously worked arbitration agreements that would tend
to inhibit the filing of unfair labor practice charges with the Board.
20
(d) Restricting the right of employees to engage in concerted activity by
attempting to enforce unlawful arbitration agreements 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 25
the Act.
2. Take the following affirmative action, which is necessary to effectuate the purposes of
the Act.
30
(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.
35
(b) Rescind or revise 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 process that precludes
employees from maintaining class or collective action in all forums,
whether arbitral or judicial.40
(c) Advise all affected employees, by all means that employees 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 prohibited from bringing and participating 45
in class action lawsuits against the Respondent.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules 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
purposes.
JD–(SF)–52–13
13
(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 locations where 5
notices to employees are customarily posted, and transmit to employees
by all means that employees are customarily advised of matters
pertaining to their terms and conditions of employment, copies of the
attached notice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region 31, after being duly signed 10
by Respondent’s representative, shall be posted and electronically
transmitted 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 material.15
(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 attesting to the steps that Respondent has
taken to comply.20
Dated, Washington, D.C. November 8, 2013
25
_______________________
Gerald A. Wacknov
Administrative Law Judge
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
Choose representatives to bargain with us on your behalf
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 charges 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 arbitration agreements in judicial forums and WE WILL withdraw all
objections thereto.
WE WILL NOT in any like or related manner interfere with, restrain, 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 do not constitute a waiver of their right in all forums to maintain
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 revised agreements or specific notification that the agreements have been
rescinded.
SECURITAS SECURITY
SERVICES USA, INC.
__________________________
(Employer)
Dated____________ By____________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11500 West Olympic Boulevard, Suite 600, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235-7350.