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                                                            [DO NOT PUBLISH]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
                       _________________________

                         Agency No. 12-CA-145083

SAMSUNG ELECTRONICS AMERICA, INC.,
f.k.a. Samsung Telecommunications America, LLC,

                                                      Petitioner-Cross Respondent,

                                   versus

NATIONAL LABOR RELATIONS BOARD,
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                                                              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.
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       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.
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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
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      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
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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
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      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.




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      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


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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


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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


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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


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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


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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.
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      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.




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