Securitas Security Services USA, Inc., (2016)

Docket Number31-CA-072179

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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 answering 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 argument, if any, regarding Kitsap.

For the reasons set forth below, we find no merit in the Respondent’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, informally 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 ruling 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 resolved. Congress provided the option of ratification by expressly exempting “the General Counsel of the National Labor Relations Board” from the FVRA provisions that would otherwise preclude the ratification 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 challenge the continued authority of the Acting General Counsel following his nomination by the President, this ratification by the General Counsel would render moot any argument that the SW General holding concerning the former Acting General Counsel’s authority precludes further 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 arising 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 representative action.” The New Hire Agreement also states:

Claims 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. Such administrative claims include without limitation claims or charges brought before 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 arbitration; 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, collective 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 Employee Agreement includes a provision under which employees 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 currently 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-andhour 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 enforce 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...

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