By Lisa Milam-Perez, J.D. Striking down yet another arbitration agreement with a class action waiver (this time, Samsung’s), a three-member NLRB panel also found, contrary to the law judge, that the employer had twice unlawfully interrogated an employee about her conversations with coworkers regarding her pending wage suit. On the other hand, the Board reversed the ALJ’s factual finding that the employer had instructed her not to discuss her suit with coworkers (Samsung Electronics America, Inc., February 3, 2016). Arbitration agreement invalidated. In now-familiar fashion, the Board held that Samsung unlawfully maintained an arbitration agreement that required employees to waive their right to pursue class and collective actions. It also found the employer separately violated the Act by demanding that employees withdraw an FLSA collective action filed in a federal court in Florida, and by filing a motion to dismiss the suit and compel arbitration. (Member Miscimarra was not on the three-member panel to dissent in this case.) Recruiting class members. A Samsung field sales manager, asked other employees about whether they were being properly paid for the hours they were working, and inquired whether they wanted to join her wage suit. An HR official received word from a manager that one coworker had gotten ruffled by the conversation. That prompted a phone call from HR to the employee. “We really don’t want you calling or … reaching out to your coworkers to discuss these types of things,” she alleged that she was told. She had made others feel very uncomfortable, HR said. The employee countered (untruthfully) that she hadn’t said anything to coworkers about the lawsuit and that she’d done nothing more than partake in the usual “venting” among peers. After the HR official received another complaint, she reached out again to the employee, this time by email, notifying her of the recent complaint, asking if anything had “changed” since their earlier conversation, and urging the employee to contact HR directly if she had concerns. At that point, the employee answered that she didn’t feel comfortable talking about it to HR and that, if the HR official had questions, she should contact her attorney. Credibility. The ALJ credited the employee’s characterization as to what was said during those conversations with HR, despite finding that neither witness was more clearly credible. The Board noted it does not often overrule such credibility determinations, but here the ALJ did not take witness demeanor into account at all, instead merely relying on inferences drawn from other facts in evidence. As such, the Board’s assessment of witness credibility was as good as his, the panel reasoned, and concluded that the evidence did not support a finding that the employer unlawfully barred the employee from discussing her lawsuit. Interrogation. Nonetheless, the Board did find—even accepting the HR director’s account of her interactions with the employee—that she improperly interrogated the employee about her protected, concerted activity. Although not framed as questions, her “sharing” that coworkers were uncomfortable about the employee’s overtures as to a “potential lawsuit” was intended to elicit a response about her protected activity (her putative collective action) and to gain details about the employee’s interactions with other employees about it. The Board also observed it was the first time that a “high-level management official” had ever personally reached out to the employee and that at no time during their interactions was she given assurances against reprisals. Also, in the Board’s view, the fact that the employee gave an untruthful answer as to the nature of her discussions with coworkers reflected that she was clearly reluctant to discuss the matter, and that the HR director’s statements were indeed coercive. So too with the HR director’s follow-up email, which the Board saw as “a second, thinly disguised question aimed at discovering the extent of the employee’s protected concerted activity.”
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