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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-10644 ________________________
Agency No. 12-CA-145083
JORGIE FRANKS,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
_________________________
No. 16-10788 _________________________
SAMSUNG ELECTRONICS AMERICA, INC., f.k.a. Samsung Telecommunications America, LLC,
Petitioner-Cross Respondent,
NATIONAL LABOR RELATIONS BOARD, Case: 16-10644 Date Filed: 07/31/2018 Page: 2 of 15
Respondent-Cross Petitioner.
________________________
Petitions for Review of a Decision of the National Labor Relations Board ________________________
(July 31, 2018)
Before MARTIN and HULL, Circuit Judges and RESTANI, * Judge.
HULL, Circuit Judge:
In January 2015, after leaving her job at Samsung Electronics America
(“Samsung”), Jorgie Franks filed an unfair labor charge with the National Labor
Relations Board (“NLRB”). In her charge, Franks alleged that Samsung violated
the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151, et seq. by
(1) maintaining an employment agreement that required employment disputes to be
resolved through individualized arbitration and that waived its employees’ rights to
pursue collective action lawsuits against Samsung; (2) interrogating Franks about
her pursuit of a collective action lawsuit against Samsung; and (3) ordering Franks
not to talk to her coworkers about the prospect of filing a collective action lawsuit
against Samsung.
* Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 Case: 16-10644 Date Filed: 07/31/2018 Page: 3 of 15
A three-member panel of the NLRB ruled that Samsung’s employment
agreement violated the NLRA and that Samsung had unlawfully interrogated
Franks. Samsung Elecs. Am., Inc. f/k/a Samsung Telecomm. Am., LLC & Jorgie
Franks, 363 N.L.R.B. No. 105 (Feb. 3, 2016). However, the NLRB panel found
that Samsung did not issue a “do not talk” order to Franks. Id.
In 2016, Samsung filed a petition for review of the NLRB panel’s order in
this Court, challenging the NLRB panel’s findings that Samsung’s employment
agreement violated the NLRA and that Sanchez unlawfully interrogated Franks.1
Franks also filed a petition for review, challenging the NLRB panel’s rejection of
her “do not talk” claim and asking this Court to affirm the remainder of the NLRB
panel’s order. The NLRB subsequently filed a cross-application for enforcement
of the order, arguing that Samsung’s employment agreement violated the NLRA
and that the NLRB panel’s finding that Samsung unlawfully interrogated Franks
was supported by substantial evidence. The NLRB also asserted that the NLRB
panel’s finding that Sanchez did not instruct Franks not to talk to other employees
was supported by substantial evidence.
After careful consideration, and with the benefit of oral argument, we
(1) deny the NLRB’s cross-application for enforcement, (2) deny Franks’ petition
1 Initially, Samsung filed its petition for review with the Fifth Circuit Court of Appeals. The Fifth Circuit Court of Appeals subsequently transferred Samsung’s petition to this Court, pursuant to an order from the Judicial Panel for Multidistrict Litigation. 3 Case: 16-10644 Date Filed: 07/31/2018 Page: 4 of 15
for review, (3) grant Samsung’s petition for review, (4) reverse the NLRB panel’s
ruling that Samsung’s agreement violated the NLRA, (5) reverse the NLRB
panel’s ruling that Samsung unlawfully interrogated Franks, and (6) affirm the
NLRB panel’s ruling that Samsung did not issue an unlawful “do not talk” order to
Franks.
I. BACKGROUND
A. Franks’ Employment with Samsung
In January 2013, Samsung hired Franks as a Field Sales Manager in the
Tampa, Florida area. At the time Franks was hired, Samsung required its
employees to sign a “Mutual Agreement to Arbitrate Claims” (“Agreement”). In
relevant part, the Agreement stipulated that work-related disputes between the
signatory employee and Samsung would be resolved through individualized
arbitration and that there would be no right to litigate employment-related disputes
in class or collective action lawsuits:
CLAIMS COVERED BY THE AGREEMENT
Except as otherwise provided in this Agreement, both the Company and I agree that neither of us shall initiate or prosecute any lawsuit or administrative action (other than an administrative charge of discrimination to the Equal Employment Opportunity Commission or a similar fair employment practices agency or an administrative charge within the jurisdiction of the National Labor Relations Board) in any way related to any claim covered by this Agreement. Moreover, there will be no right or authority for any dispute to be brought, heard or arbitrated as a class action (including without limitation opt out class actions or opt in collective class actions) or in 4 Case: 16-10644 Date Filed: 07/31/2018 Page: 5 of 15
a representative capacity on behalf of a class of persons or the general public.
The Agreement covered, among other things, “claims for wages or other
compensation due.”
In mid-2014, Franks became concerned that Samsung was not paying her
overtime wages. In August 2014, Franks asked three coworkers about whether
they shared her concerns, and if so, whether they would be interested in joining her
in a lawsuit against Samsung.
A few weeks later, on September 3, 2014, Franks received a phone call from
Sandra Sanchez, a Samsung Human Resources Business Partner. Initially,
Sanchez asked Franks about how work was going and whether she liked working
for Samsung. Franks responded with vague answers, as she was nervous to be
speaking with such a high-ranking Samsung manager.
Sanchez then said “before you jump off the phone, let me talk to you about
the real issue, why I called.” Sanchez told Franks that other Samsung employees
had complained that Franks had approached them about filing a lawsuit against
Samsung. Sanchez explained to Franks that Franks’ comments had made her
coworkers feel uncomfortable. Sanchez also asked Franks “is there anything you
would like to [tell] me about now?”
Franks responded “no,” at which point, Sanchez explained “we really don’t
want you calling—or you know—reaching out to your coworkers to discuss these 5 Case: 16-10644 Date Filed: 07/31/2018 Page: 6 of 15
types of things.” Sanchez instructed Franks to come to her directly with any
concerns.
In response, Franks asked Sanchez whether “it’s not okay for me to . . . talk
with my coworkers . . . and discuss things” about working at Samsung. Sanchez
assured Franks that she could talk to her fellow employees as she wished. Sanchez
conceded that she herself had vented to other coworkers before, acknowledging the
“normal ups and downs” of working. But Sanchez explained to Franks that her
comments were making her coworkers feel uncomfortable.
During the phone call, Franks never confirmed to Sanchez whether she was
actually pursuing a lawsuit against Samsung. After the phone call ended, Franks
called one of her coworkers and told her about what Sanchez had said.
A few weeks later, Samsung Human Resources received an anonymous
complaint from one of Franks’ coworkers, who claimed that Franks had
approached him during a conference in mid-September (i.e., after Sanchez’s phone
conversation with Franks) and asked whether he was interested in filing a lawsuit
against Samsung. The employee stated that Franks’ comments had made him
uncomfortable.
Sanchez followed up on this complaint by sending an email to Franks on
October 7, 2014. Sanchez’s email stated:
As you are aware, you and I spoke on September 3, 2014. In this conversation, you told me that you had no issues with Samsung and 6 Case: 16-10644 Date Filed: 07/31/2018 Page: 7 of 15
whatever conversations that you were having with your peers was simply normal “venting between peers.” You also stated in that same conversation that you have not make [sic] any comments regarding a lawsuit or charge against Samsung and that you “loved working for Samsung.”
We recently received a separate phone call from one of the [Field Sales Managers] in the Southeast region stating that you had approached him about “a lawsuit you had filed with an attorney about Samsung” during the regional training the week of September 8, 2014 which was after our conversation noted above.
Has anything changed since our September 3rd conversation? I would like to reiterate again that you can always reach out directly to me with any issues/concerns.
Franks responded by email the following day, October 8, 2014. Franks
wrote that she was not comfortable speaking with Sanchez about the matter, but
that if Sanchez had any questions, she should call Franks’ attorney.
Franks stopped working for Samsung on October 29, 2014.
B. Procedural History
On November 13, 2014, Franks, along with several former employees of
Samsung (collectively, “Samsung Class Plaintiffs”), filed a “Nationwide Collective
Action Complaint” against Samsung in the United States District Court for the
Middle District of Florida. The complaint alleged that Samsung violated the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq., by failing to pay overtime wages to
its Field Sales Managers and by failing to maintain adequate records.
7 Case: 16-10644 Date Filed: 07/31/2018 Page: 8 of 15
On January 9, 2015, after demanding that the complaint be withdrawn in
light of the arbitration clause in its employment agreements, Samsung filed a
“Motion to Dismiss and Compel Mediation/Arbitration.” On January 27, 2015, the
Samsung Class Plaintiffs voluntarily dismissed their lawsuit against Samsung
without prejudice.
On January 26, 2015—the day before the Samsung Class Plaintiffs
dismissed their lawsuit against Samsung—Franks filed her unfair labor charge with
the NLRB. In her charge, Franks alleged that Samsung violated her rights under
§ 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), by: (1) maintaining an agreement
that forced its employees, including Franks, to waive their rights to pursue
collective action lawsuits against Samsung; (2) interrogating Franks about her
pursuit of a collective action lawsuit against Samsung (citing Sanchez’s September
3 phone call); and (3) ordering Franks not to talk to her coworkers about the
prospect of filing a collective action lawsuit against Samsung (citing Sanhez’s
September 3 phone call and October 7 email).
On August 18, 2015, an administrative law judge (“ALJ”) found that
Samsung’s employment agreement requiring individualized arbitration of
employment-related disputes, and waiving the employees’ rights to pursue class or
collective action lawsuits against Samsung, violated the NLRA. The ALJ also
ruled that Samsung violated the NLRA by ordering Franks not to talk to her
8 Case: 16-10644 Date Filed: 07/31/2018 Page: 9 of 15
coworkers about filing a collective action lawsuit against Samsung. However, the
ALJ found that Samsung did not unlawfully interrogate Franks about filing a
collective action lawsuit against Samsung. Samsung challenged the ALJ’s two
findings against it.
On February 3, 2016, a three-member panel of the NLRB agreed with the
ALJ that the employment agreement violated the NLRA. Samsung Elecs. Am.,
363 N.L.R.B. No. 105. But the NLRB panel disagreed with the ALJ as to the other
two rulings; instead, the NLRB panel concluded that Samsung did unlawfully
interrogate Franks but that Samsung did not issue a “do not talk” order to Franks.
Id.
As detailed above, the parties collectively challenge the NLRB panel’s three
rulings. We review each in turn.
II. DISCUSSION
A. Standards of Review
This Court reviews de novo the NLRB panel’s legal conclusions. Mercedes-
Benz U.S. Int’l, Inc. v. Int’l Union, UAW, 838 F.3d 1128, 1134 (11th Cir. 2016).
This Court will sustain the NLRB panel’s factual findings if they are
supported by substantial evidence in the record as a whole. Id.; see 29 U.S.C.
§ 160(e). Substantial evidence is the degree of evidence that could satisfy a
reasonable factfinder, as [the NLRB panel] cannot rest its factual conclusions on a
9 Case: 16-10644 Date Filed: 07/31/2018 Page: 10 of 15
mere “scintilla of evidence.” Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259,
1261–62 (11th Cir. 1999) (quoting Northport Health Servs., Inc. v. NLRB, 961
F.2d 1547, 1550 (11th Cir. 1992)); see also Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S. 359, 377, 118 S. Ct. 818, 828 (1998). A reviewing court may not
“displace [the NLRB panel’s] choice between two fairly conflicting views, even
though the court [may] justifiably have made a different choice had the matter been
before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71
S. Ct. 456, 465 (1951). Where the evidence is conflicting and the NLRB panel’s
determination rests on credibility determinations, we are bound by those
determinations unless they are “inherently unreasonable or self-contradictory.”
NLRB v. IDAB, Inc., 770 F.2d 991, 996 (11th Cir. 1985) (quotation omitted).
B. Samsung’s Employment Agreement
After the NLRB panel issued its order, the Supreme Court decided Epic
Systems Corp. v. Lewis, which forecloses Franks’ first claim against Samsung.
584 U.S. __, 138 S. Ct. 1612 (2018). Epic Systems concerned whether employer-
employee agreements that contain class and collective action waivers and stipulate
that employment disputes are to be resolved by individualized arbitration violate
the NLRA. Id. at __, 138 S. Ct. at 1619–21, 1632. The Supreme Court held that
such agreements do not violate the NLRA and that the agreements must be
enforced as written pursuant to the Federal Arbitration Act. Id. at __, 138 S. Ct. at
10 Case: 16-10644 Date Filed: 07/31/2018 Page: 11 of 15
1619, 1632. We therefore grant Samsung’s petition for review and reverse the
NLRB panel’s ruling concerning the legality of Samsung’s employee arbitration
agreement with Franks.
C. Samsung’s Interrogation of Franks
In light of Epic Systems, we also reverse the NLRB panel’s finding that
during the September 3 phone call Sanchez “unlawfully” interrogated Franks about
Franks’ pursuit of a collective action lawsuit against Samsung.
“An employer violates section 8(a)(1) of the Act by coercively interrogating
its employees about their [protected] activities.” NLRB v. Gaylord Chem. Co.,
824 F.3d 1318, 1333 (11th Cir. 2016) (quotation omitted). An interrogation is
coercive if, in light of “all the surrounding circumstances, ‘its probable effect’
tends to interfere with the employees’ exercise of their [§ 7] rights.’” Id.
(emphasis added) (quoting NLRB v. E.I. DuPont De Nemours, 750 F.2d 524, 527
(6th Cir. 1984)).
Here, the NLRB panel reviewed the parties’ testimony as to the September 3
phone call and the October 7 email and determined that Sanchez interrogated
Franks. Samsung Elecs. Am., 363 N.L.R.B. No. 105 at 1–3. The NLRB panel
additionally considered extraneous circumstances, such as the nature of the Franks-
Sanchez relationship, in order to support its determination. Id. For example, the
NLRB panel considered the fact that Sanchez was “a high-level management
11 Case: 16-10644 Date Filed: 07/31/2018 Page: 12 of 15
official [who] had [n]ever personally contacted Franks prior to September 3” and
that Sanchez’s reference to a pending lawsuit “[was] calculated to elicit a
response” from Franks. Id. The NLRB panel also cited the fact that Franks had
given an “untruthful response” in response to Sanchez’s question about not
“talking to anyone” as a sign of mistrust between the two. Id.
Factually, the NLRB panel’s finding that Sanchez unlawfully interrogated
Franks is supported by sufficient evidence. But that finding rests on the legal
premise that the interrogation interfered with Frank’s exercise of a § 7 right.
Gaylord Chem. Co., 824 F.3d at 1333 (explaining that an employer violates the
NLRA when its interrogation interferes with an employee’s free exercise of a § 7
right). In its order, the NLRB panel identified the § 7 right in question as the
“protected activity of bringing a collective lawsuit against [Samsung].” Samsung
Elecs. Am., Inc., 363 N.L.R.B. No. 105 at 3. Similarly, in her petition, Franks
contends that Samsung unlawfully interfered with her right to engage in the
“protected activity [of] filing and participating in the collective action lawsuit”
against Samsung. However, in light of Epic Systems, Franks validly forfeited the
right to pursue a collective action against Samsung when she signed Samsung’s
employment agreement. See Epic Systems, 584 U.S. at __, 138 S. Ct. at 1632.
Thus, Samsung could not have violated the NLRA when it allegedly dissuaded
Franks from filing a collective action lawsuit, as she was legally not able to do so
12 Case: 16-10644 Date Filed: 07/31/2018 Page: 13 of 15
once she signed her employment agreement. Put simply, Franks’ interference
claim fails because she had already given up the very right with which Samsung
allegedly interfered. 2
D. Samsung’s “Do Not Talk” Order
In support of her “do not talk” claim, Franks points to Sanchez’s comment
during the September 3 phone call, where Sanchez told Franks not to discuss with
her coworkers the prospect of filing a collective action lawsuit against Samsung, as
it made her coworkers feel uncomfortable. Samsung Elecs. Am., Inc., 363
N.L.R.B. No. 105 at 3. The NLRB panel rejected this claim, finding no evidence
beyond Franks’ testimony to support the allegation. Id.
It is a violation of the NLRA for an employer “to interfere with, restrain, or
coerce” its employees from engaging in concerted activities for the purpose of the
employees’ mutual aid or protection. 29 U.S.C. §§ 157, 158(a)(1). An employer’s
efforts to prevent its employees from discussing the prospect of engaging in a
protected activity constitutes such a violation. See e.g., Ark Las Vegas Rest. Corp.
v. NLRB, 334 F.3d 99, 106 (D.C. Cir. 2003) (upholding NLRB panel’s finding that
employer violated the NLRA when supervisor banned employee from talking to
her coworkers about joining a union).
2 This opinion is limited to its facts and only concerns the protected activity of filing and participating in a collective action lawsuit. Nothing herein addresses any other protected activity. 13 Case: 16-10644 Date Filed: 07/31/2018 Page: 14 of 15
Substantial evidence supports the NLRB panel’s ruling. When reviewing
the NLRB panel’s factual findings, our inquiry is limited to whether NLRB panel’s
determination rests on evidence that “could satisfy a reasonable factfinder.” See
Allentown, 522 U.S. at 377, 118 S. Ct. at 828 (emphasis omitted). Here, Sanchez
testified that her statements during the September 3 phone call were meant to
resolve complaints from Franks’ fellow employees, not to issue a directive
preventing Franks from talking to other Samsung employees about their working
conditions. Sanchez testified that the conversation was “short” and “casual,”
intended to convey to Franks that she could reach out to Sanchez with any
concerns. Additionally, Sanchez assured Franks that she could speak with her
fellow employees about work—with Sanchez noting that she too vents to her
coworkers about work—and that the purpose of the call was “to make [Franks]
aware that there were people that [were] uncomfortable” with her comments.
The NLRB panel determined that neither Franks’ nor Sanchez’s testimony
about the September 3 call deserved to be credited over the other. Samsung Elecs.
Am., Inc., 363 N.L.R.B. No. 105 at 2. Based on the entire record, this credibility
determination was not “inherently unreasonable or self-contradictory.” See IDAB,
Inc., 770 F.2d at 996 (quotation omitted). And because the NLRB panel otherwise
supported its determination by reference to the remaining relevant record
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testimony and circumstantial evidence in this case, there is no issue meriting
reversal on this ground. Id.
III. CONCLUSION
In light of Epic Systems, we deny the NLRB’s cross-application for
enforcement of the NLRB panel’s order. We deny Franks’ petition for review.
We grant Samsung’s petition for review and reverse the NLRB panel’s
conclusions (1) that Samsung’s employment agreement violated the NLRA and
(2) that Samsung unlawfully interrogated Franks about filing a collective action
lawsuit against Samsung. We affirm the NLRB panel’s conclusion that Samsung
did not issue an unlawful “do not talk” order to Franks.
NLRB’S CROSS-APPLICATION FOR ENFORCEMENT DENIED;
FRANKS’ PETITION FOR REVIEW DENIED; SAMSUNG’S PETITION
FOR REVIEW GRANTED, AND THE NLRB PANEL’S ORDER IS
AFFIRMED IN PART AND REVERSED IN PART.