RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0113p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

N ATIONAL L ABOR R ELATIONS B OARD , Petitioner ,

v

.

A LTERNATIVE E NTERTAINMENT , I NC ., Respondent

. ┐ │ │ │ │ │ │ │ ┘ No. 16-1385

On Application for Enforcement of a Final Decision

and Order of the National Labor Relations Board. No. 07-CA-144404. Argued: November 30, 2016 Decided and Filed: May 26, 2017
Before: MOORE, SUTTON, and WHITE, Circuit Judges.

_________________ COUNSEL

ARGUED: Joel Heller, NATIONAL LABOR RELA TIONS BOARD, Washington, D.C., for Petitioner. Timothy J. Ryan, JACKSON LEWIS P.C., Grand Rapids, Michigan, for Respondent. Harold Craig Becker, AFL-CIO, Washington, D. C., Evan M. Tager, MAYER BROWN LLP, Washington, D.C., for Amici Curiae. ON BRIEF: Linda Dreeben, Kira Dellinger Vol, Gregoire Sauter, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Timothy J. Ryan, JACKSON LEWI S P.C., Grand Rapids, Michig an, for Respondent. Harold Craig Becker, AFL-CIO, Washington, D.C ., Evan M. Tager, MAYER BROWN LLP, Washington, D.C., Michael Rubin, ALTSHULER BE RZON LLP, San Francisco, California, for Amici Curiae. MOORE, J., delivered the opinion of th e court in which WHITE, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 24–34), delivered a separate opinion concurring in part and dissenting in part. 

### >No. 16-1385 NLRB v. Alt. Entm’t Page 2

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. Pe titioner National Labor Relations Board (NLRB) seeks enforcement of a Decision an d Order of the NLRB finding that Respondent Alternative Entertainment, Inc. (AEI) violated the National La bor Relations Act (NLRA). AEI
seeks relief from the order. The NLRB ar gues that AEI violated the NLRA by barring employees from pursuing class-actio n litigation or collective arbitr ation of work-related claims.
The NLRB also contends that AEI violated the NLRA by forbidding James DeCommer, an AEI technician, from discussing a proposed compensa tion change with his co workers and by firing DeCommer for discussing the prop osed change and complaining to management about it. For the reasons discussed below, we ENFORCE the NLRB’s Decision and Order.

I. BACKGROUND

DeCommer worked as a field technician for AEI from August 2006 un til he was fired on December 18, 2014. Administrative Record (“A.R. ”) (Hr’g Tr. at 13) (Page ID #19). AEI provides Dish Network inst allation and services. Id. at 87 (Page ID #93).
Two AEI employment documents are at issue in this case. First, AEI requires its employees to sign an agreement entitled “AEI ALTERNATIVE ENTERTAINMENT, INC.
OPEN DOOR POLICY AND ARBITRATION PROG RAM,” which states that “Disputes between you and AEI (or any of its affiliates, offi cers, directors, managers or employees) relating to your employment with the Company” must, at the election of the em ployee or the company, be resolved “exclusively through binding arbitrati on.” A.R. (“Open Door Policy and Arbitration Program” at 1) (Page ID # 209). The agreement also states that “By signing this policy, you and AEI also agree that a claim may not be arbitrated as a class action, also ca lled ‘representative’ or ‘collective’ actions, and that a claim may not otherw ise be consolidated or joined with the claims
of others.” Id. Second, AEI maintains an employee handbook, which lists “examples . . . intended to demonstrate the types of behaviors prohibited by the company.” A.R. (Employee Handbook at 27) (Page ID #196). Examples include “[u]nauthorized disc losure of businessNo. 16-1385 NLRB v. Alt. Entm’t Page 3

secrets or confidential business or customer information, including any compensation or employee salary information.” Id. at 28 (Page ID #197).
The central dispute in this case stems from ch anges in field technicians’ compensation. AEI compensates technicians using a “unit-based compensation system.” A.R. (Hr’g Tr. at 17) (Page ID #23). AEI assigns each type of job a certain number of units. For example, “a trouble
call or a service call . . . would be considered 12 units,” and tec hnicians receive compensation for each unit of work they perform. Id . Different technicians receive different per-unit compensation rates, ranging from approximately $1.90 per unit to approximately $4.00 per unit.
Id. at 18 (Page ID #24). AEI determines each te chnician’s per-unit compensation rate based on the technician’s metrics, including factors like the number of jobs a technician completed, how frequently customers reported pr oblems after a technician performed installations, and the
technician’s customer satisfaction ratings. Id.
While DeCommer was employed at AEI, the company made two changes to the compensation structure. First, AE I added smart home service sales 1 as a metric for all
technicians. Id. Smart home sales were additional serv ices, such as mounting a customer’s television on the wall or selling accessories to complement a customer’s home entertainment system, that technicians so ld during service calls. Id. at 20 (Page ID #26). AEI began requiring
technicians to meet a minimum dollar amount of smart home service sales in order to increase their pay per unit (initially th e threshold was $6.00 per call and it later increased to $10.00 per call). Id.

At first, DeCommer excel led at smart home sales and in 2013 and 2014 he broke company records. Id. at 39, 48 (Page ID #45, 54). Later, he determined that he was losing money by spending time on smart home sales instead of going on more service calls, so his smart
home sales numbers dro pped off significantly. Id. at 40–41 (Page ID #46–47). There is some dispute about how DeCommer handled smart home sales after he stopped trying to break company records. DeCommer testified that he told his supervisor that he would continue to meet
the minimum dollar amount in smart home sales but that he was no longer motivated to break

1 These are also referred to in the record as “Smart Home Services.”No. 16-1385 NLRB v. Alt. Entm’t Page 4

records. Id. at 40–41 (Page ID #46–47). Specifically, he testified that he said, “I’ll make sure I hit my goal. I’m not going to miss that, but I’m not going to be pushed to be number one every month. . . . I actually lost money by doing that.” Id. at 40 (Page ID #46). DeCommer’s supervisor, Victor Humphrey, testified th at on or around December 17, 2014 DeCommer told
him he would not do smart home sales and that “he made the comment . . . that he talks his
customers out of services.” Id. at 95–96 (Page ID #101–02). Hump hrey testified that after hearing this comment he was “in shock . . . [b]ecause I had an employee that just refused to do his job to his boss.” Id. at 96–97 (Page ID #102–03). DeCommer, however, denied that he had a conversation with Humphrey on December 17, and al so denied ever refusing to do Smart Home
Sales. Id. at 130 (Page ID #136).
The second change affected compensati on only for technicians who, like DeCommer,
drove their own vehicles. A.R. (Hr’g Tr. at 14) (Page ID #20). AEI employs field technicians who drive personally owned vehicles (POV tec hnicians or POVs) and field technicians who drive company owned vehicles (COV technicians or COVs). In November or December 2014, AEI announced it would begin compensating P OVs for using their own vehicles based on mileage, not based on units. A.R. (12/15/2014 Email from Neal Maccoux) (Page ID #306); A.R. (Hr’g Tr. at 43) (Page ID #49). Under the old system, POVs received a supplement of $0.82 per unit to compensate them for the cost of driving their own vehicles. A.R. (Hr’g Tr. at 26) (Page ID #32). Under the new system, 2 POVs would be compensated $0.575 per mile 3
based on the miles driven from th eir first to their last job. A.R. (12/15/2014 Email from Neal Maccoux) (Page ID #306); A.R. (Hr’g Tr. at 43) (Page ID #49). DeCommer determined that he would “lose a lot of money” unde r this new system, estimating th e change would cost him seven to ten thousand dollars per year, or about twenty percent of his total compensation. A.R. (Hr’g Tr. at 25, 26, 31) (Page ID #31, 32, 37).

2 DeCommer was fired before the new system took effect. See A.R. (Hr’g Tr. at 119) (Page ID #125).
3 There appears to be some confusion over whether th e reimbursement rate would be $0.575 per mile or $0.52 per mile. See A.R. (12/15/2014 Email from Neal Maccoux) (Page ID #300) (announcing a change to a $0.575 per mile reimbursement rate); A.R. (Decision & Order at 7) (Page ID #353) (discussing a change to a $0.52 per mile reimbursement rate). This discrepancy does not impact our analysis, however.No. 16-1385 NLRB v. Alt. Entm’t Page 5

DeCommer repeatedly voiced his concern ab out the proposed compensation change. DeCommer testified that he spoke with “probably 10 technicians or more” about the change and “[t]hey were concerned that they were going to lose money, that this pa y was going to stop their proper compensation of driving their vehicle.” Id . at 23 (Page ID #29). De Commer testified that he had an in-person conversat ion about the proposed change with manager Rob Robinson. DeCommer testified that he “asked [Robinson] if he knew anything more about the pay change” to which “[Robinson] said, why don’t we talk outs ide, because there were some other technicians in that general office area. . . . [I]t was at that point that Mr. Robinson to ld me that I don’t want you talking to any of the other technicians about this ; if you have any concerns or questions, I want you to direct them to myself or Mr. Humphrey.” Id. at 28 (Page ID #34). DeCommer
also testified that he discussed with other te chnicians the contents of the conversation with
Robinson. Id. In addition, DeCommer sent a text me ssage to Robinson and an email to the company president, Tom Burge ss, criticizing the proposed ch ange. A.R. (12/5/2014 Text Message) (Page ID #212); A.R. (12/16/2014 Email from James DeCommer) (Page ID #213). In the email to Burgess, DeCommer discussed the impact on his personal compensation and the compensation of other POVs. DeCommer repeated ly referred to the POVs collectively, saying that “[g]enerally speak ing the povs are the high est p[er]formers and the most profitable of your tech force” and that the change would “unintentionally screw over almost [the] entire pov tech force.” A.R. (12/16/2014 Email from James DeCo mmer) (Page ID #213). He says of the impact on POVs, “what you are asking myself and all the other povs to do is to accept a 20% pay cut.”
Id. (Page ID #214–15). DeCommer also included a discussion of th e tax implications for POVs with different filing statuses. Id. (Page ID #214). Finally, Robinson set up a telephone conversation on or around December 16, 2014 between DeCommer and company CFO Neal Maccoux where DeCommer again expre ssed his concerns. A.R. (Hr’g Tr. at 30) (Page ID #36). In that conversation, DeCommer explained to Maccoux that he ha d “talked with other employees and that they had done their own figures and found that they would lose qu ite a bit of money as well if this change were to go through.” Id. at 32 (Page ID #38). DeCommer testified that he informed other technicians—“anywhere from 5 to 10” of them, “[p]robably closer to 10”—about
the discussion with Maccoux. Id. at 36 (Page ID #42).No. 16-1385 NLRB v. Alt. Entm’t Page 6

AEI fired DeCommer on December 18, 2014. De Commer testified that on December 18, General Manager Victor Humphrey said to De Commer, “our relationshi p is not working out”
and fired him. Id. at 38 (Page ID #44). DeCommer as ked, “well, is it due to my job performance?” to which Humphrey responded, “ no, our relationship is not working out.” Id. Humphrey’s testimony about their Decembe r 18 conversation mirrors DeCommer’s, but Humphrey additionally testified th at he made the decision to fire DeCommer the day before because DeCommer told Humphrey that he was not going to do smart home sales. Id. at 96–98 (Page ID #102–04). On the AEI Employee Separation Document, in response to “REASON FOR SEPARATION,” Humphrey wr ote, “Relationship is not working out.” A.R. (AEI Employee Separation Document) (Page ID #224). In response to the question, “DID THEY WORK TO THE BEST OF THEIR ABILITY?” Humphrey wrote, “No, Did not work to his potential in Smart Home Services consistently.” Id. In response to “OTHER COMMENTS” Humphrey wrote, “Consi[s]tently had a bad attitude.” Id.

DeCommer filed charges and then amended charge s against AEI with the NLRB. A.R. (First Amended Charge) (Page ID #147). The NLRB’s General Counsel issued a complaint on March 26, 2015. A.R. (Compl. at 4) (Page ID #156). Administrative law judge (ALJ) Michael A. Rosas issued a recommended decision on July 9, 2015 finding that AEI violated the NLRA. A.R. (Decision & Order at10–11) (Page ID #350–51); Alt. Entm’t, Inc. , 363 N.L.R.B. 131, 2016 WL 737010, at *5 (Feb. 22, 2016) . On February 22, 2016, the NLRB, by Chairman Pearce and Members Miscimarra and McFerran, adopted the AL J’s findings of fact and legal analysis and adopted with amendments the ALJ’s conclusions of law. Alt. Entm’t , Inc. , 2016 WL 737010, at *1. The amended conclusions of law stated:
(1) By (1) prohibiting James DeCommer from discussing his concerns over changes in compensation with cowork ers; (2) implementing rules prohibiting unauthorized disclosure of employee comp ensation and salary information; and (3) compelling employees, as a condition of employment, to sign arbitration agreements waiving their right to pursue class or collect ive actions in all forums, arbitral and judicial, the Re spondent has violated Section 8(a)(1) of the Act. . . . (2) By discharging James DeCommer for engaging in protected activity, including discussing his concerns about sa lary, wages, or compensation structures with his coworkers and bringing complain ts about those issues to management, the Respondent has violated S ection 8(a)(1) of the Act.No. 16-1385 NLRB v. Alt. Entm’t Page 7

Id. Member Miscimarra filed a separate opini on concurring in part and dissenting in part. Id. at *3. The NLRB filed an application for enforcement of the order on March 30, 2016.
We have jurisdiction to review the NLRB’ s Decision and Order pursuant to 29 U.S.C. § 160(e), (f). We “review[] the factual determ inations made by the NLRB under the substantial
evidence standard.” NLRB v. Local 334, Laborers Int’l Union , 481 F.3d 875, 878–79 (6th Cir. 2007). “The deferential substantial evidence standard requires this court to uphold the NLRB’s factual determinations if they are supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. at 879 (quoting NLRB v. Pentre Elec.,
Inc. , 998 F.2d 363, 368 (6th Cir. 1993)). “When ther e is a conflict in th e testimony, ‘it is the Board’s function to resolve questions of fact and credibility,’ and thus this court ordinarily will not disturb credibility evalua tions by an ALJ who observed the witnesses’ demeanor.” Turnbull Cone Baking Co. v. NLRB , 778 F.2d 292, 295 (6th Cir. 1985) (quoting NLRB v. Baja’s Place , 733 F.2d 416, 421 (6th Cir. 1984)). We review th e NLRB’s application of the law to facts under
the substantial evid ence standard. Id. We review the NLRB’s le gal conclusions de novo; however, we defer to the NLRB’s r easonable interpretation of the Na tional Labor Relations Act.
Local 334 , 481 F.3d at 879; Lechmere, Inc. v. NLRB , 502 U.S. 527, 536 (1992) (“Like other administrative agencies, the NLRB is entitled to judicial deference when it interprets an ambiguous provision of a statut e that it administers.”); NLRB v. United Food & Commercial Workers Union, Local 23 , 484 U.S. 112, 123 (1987) (applying Chevron deference to the NLRB’s interpretation of the NLRA).

II. AEI’S BAR ON COLLECTIVE ARBI TRATION OF WORK-RELATED CLAIMS

The NLRB concluded that AEI violated th e NLRA by maintaining a company policy requiring employees to agree that disputes “relating to . . . empl oyment with the company” must be resolved “exclusively through binding arbitration” and further agreeing that “a claim may not be arbitrated as a class action, al so called ‘representative’ or ‘col lective’ actions” or “otherwise be consolidated or joined with the claims of others.” A.R. (“Open Door Policy and Arbitration Program” at 1) (Page ID #209). The NLRB concl uded that AEI’s arbitra tion provision violated the NLRA because it prevents employees fr om taking any concerted legal action. Alt. Entm’t,
Inc. , 2016 WL 737010, at *1, 5.No. 16-1385 NLRB v. Alt. Entm’t Page 8

An arbitration provision that , like AEI’s, prevents employ ees from taking any concerted legal action implicates two federal statutes, th e Federal Arbitration Act and the National Labor Relations Act. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., states that arbitration agreements are “valid, ir revocable, and enforceable, save upon su ch grounds as exis t at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA “manifest[s]” a “liberal federal policy favoring arbitration agreements.” Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc. , 473 U.S. 614, 625 (1985). The FAA ensures that arbitration agreements are as enforceable as any other contract. Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 443 (2006). The FAA does not, however, make arbitra tion agreements more enforceable than other contracts—“[a]s the ‘saving clause’ . . . indicat es, the purpose of Congress . . . was to make arbitration agreements as enforceable as other contracts, but not more so.” Prima Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 404 n.12 (1967).

Section 7 of the National Labor Relations Ac t, 29 U.S.C. §§ 151 et seq., states that, “Employees shall have the right to self-organization, to form, joi n, or assist labor organizations, to bargain collectively through re presentatives of their own choos ing, and to engage in other concerted activities for the purpose of coll ective bargaining or other mutual aid or protection. . . .” 29 U.S.C. § 157. Section 8 states that, “It sha ll be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C. § 158. “[C]ontracts . . . stipulat[ing] . . . the renunciation by the employees of rights guarantee d by the [NLRA]” are “a continuing means of thwarting the policy of the Act.” Nat’l Licorice Co. v. NLRB , 309 U.S. 350, 361 (1940). Contractual provisions that “i llegal[ly] restrain[]” employ ees’ rights under the NLRA are
unenforceable. Id . at 360, 365.

We must determine whether AEI’s arbitration provision is enforceable under these federal statutes. Whether federal law permits employers to require individual ar bitration of employees’ employment-related claims is a ques tion of first impression in this circuit; however, at least four other circuits have recently considered this question. See Morris v. Ernst & Young, LLP , 834 F.3d 975, 985–86 (9th Cir. 2016) (holding arb itration provisions mandating individual arbitration of employment-relate d claims violate the NLRA and fall within the FAA’s savingNo. 16-1385 NLRB v. Alt. Entm’t Page 9

clause); Lewis v. Epic Sys. Corp. , 823 F.3d 1147, 1160 (7th Cir. 2016) (same); Murphy Oil USA,
Inc. v. NLRB , 808 F.3d 1013, 1018 (5th Cir. 2015) ( upholding its earl ier holding in D.R. Horton,
Inc. v. NLRB , 737 F.3d 344 (5th Cir. 2013), that arbitr ation provisions mandating individual arbitration of employment-relate d claims do not violate the NLRAand are enforceable under the FAA); Cellular Sales of Mo., LLC v. NLRB , 824 F.3d 772, 776 (8th Ci r. 2016) (upholding its earlier holding in Owen v. Bristol Care, Inc. , 702 F.3d 1050 (8th Cir. 2013), that arbitration provisions mandating individual ar bitration of employment-relate d claims do not violate the NLRA). 4 The California Supreme Court also recently considered this question. See Iskanian v. CLS Transp. Los Angeles, LLC , 327 P.3d 129, 141–43 (Cal. 2014) (h olding that arbitration provisions banning class-action litig ation or collective arbitration of employment-related claims
are enforceable under the NLRA and the FAA’s sa ving clause, but also hol ding that arbitration provisions banning representative claims under California’s Pr ivate Attorneys General Act violates that Act). There were dissenting opinions in three of these cases. See Morris , 834 F.3d at 990 (Ikuta, J., dissenting); D.R. Horton , 737 F.3d at 364 (Graves, J., dissenting in part);
Iskanian , 327 P.3d at 159 (Werdegar, J., dissenting in part). Although this question is one of first impression in this circuit, there is already a robust debate about th e enforceability of arbitration provisions like the one at issue in this case.
AEI (and the Chamber of Commerce of the Unit ed States, arguing as amicus) urge us to follow the Fifth Circuit’s reasoning in D.R. Horton , which held that a similar arbitration provision was enforceable. See 737 F.3d at 362. We determine that the Fifth Circuit reached the incorrect conclusion, and we decline to follow it.

The Fifth Circuit based its decisi on on two principles. First, it determined that the NLRA
does not “override” the FAA. Id . at 360; cf. CompuCredit Corp. v. Greenwood , 565 U.S. 95, 98 (2012). But by asking at the outset whether “the policy behind the NLRA trumped the different policy considerations in the F AA that supported enforcement of arbitration agreements,”
D.R. Horton , 737 F.3d at 358, the Fifth Circuit starte d with the wrong question. Instead of beginning by asking which statute trumps the ot her, it makes more sense to start by asking

4 On January 13, 2017, the Supreme Court granted writs of certiorari in Morris , Lewis , and Murphy Oil and consolidated the three cases. 137 S. Ct. 809 (2017) (granting certiorari and consolidating cases).No. 16-1385 NLRB v. Alt. Entm’t Page 10

whether the statutes are compatible. “When addre ssing the interactions of federal statutes, courts are not supposed to go out looking for trouble.” Lewis , 823 F.3d at 1158. Instead, “[b]efore we
rush to decide whether one statute eclipses another, we must st op to see if th e two statutes conflict at all.” Id . at 1156 (citing Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer , 515 U.S. 528, 533 (1995)); see also Morton v. Mancari , 417 U.S. 535, 551 (1974) (“The courts are not at liberty to pick and choose among congr essional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”).
Starting with the right questi on reveals that there is no ne ed to ask whether the NLRA trumps the FAA. The two statutes do not conf lict. The NLRA and FAA are compatible because the FAA’s saving clause addresses precisely the scenario before us. The NLRA prohibits the arbitration provision on grounds that would apply to any contractua l provision, and thus triggers the FAA’s saving clause. Because of the FAA’s saving clause, the statutes work in harmony.
The core right that § 7 of the NLRA protects is the right “to engage in . . . concerted activities for the purpose of collec tive bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Concerted activity includes “resort to administrative and judicial forums.” Eastex, Inc. v.
NLRB , 437 U.S. 556, 565–66 (1978); see also NLRB v. City Disposal Sys. , Inc. , 465 U.S. 822, 835 (1984) (“[I]n enacting § 7 of the NLRA, Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together . . . . There is no indi cation that Congress inte nded to limit this protect ion to situations in which . . . fellow employees combine with one another in any particular way.”); Brady v. Nat’l Football League , 644 F.3d 661, 673 (8th Cir. 2011) (“[A] lawsuit fi led in good faith by a group of employees to achieve more favorable terms or conditions of employment is ‘concerted activity’ under § 7 of the Nati onal Labor Relations Act.”); SolarCity Corp. , 363 N.L.R.B. 83, 2015 WL 9315535, at *2 (Dec. 22, 2015) (“This protec tion has long been held to encompass the right of employees to join together to improve their terms and conditions of employment through litigation. Accordingly, an em ployer violates Section 8(a)(1 ) by compelling employees, as a condition of employment, to waiv e their right to ‘col lectively pursue litiga tion of employmentNo. 16-1385 NLRB v. Alt. Entm’t Page 11

claims in allforums, arbitral and judicial.’”) (quoting D.R. Horton, Inc. , 357 N.L.R.B. 2277, 2012 WL 36274, at *6 (Jan. 3, 2012)) (footnote omitted).
The NLRA prohibits mandatory arbitration prov isions barring collec tive or class action suits because they interfere with employees’ righ t to engage in concer ted activity, not because they mandate arbitration. These are grounds th at would apply to any contract. Because the
NLRA makes such a contractua l provision illegal on generally applicable grounds—interference with the right to concerted activity—the FAA doe s not require enforcement. According to the FAA’s saving clause, because any contract that attempts to undermine employees’ right to engage in concerted legal activity is unenforceable, an arbitration provision that attempts to eliminate employees’ right to engage in concerte d legal activity is unenforceable. Paying due respect to the text of the FAA, including its saving clause, makes clear that the NLRA and the FAA are compatible.

Second, the Fifth Circuit relied on its determin ation that “[t]he us e of [Rule 23] class action procedures . . . is not a substantive right.” D.R. Horton , 737 F.3d at 357. This determination is correct, but irrelevant. Rule 23 is not a substantive right, but the Section 7 right to act concertedly through Rule 23, arbitration, or other legal procedures is. The right to concerted activity is “a core substantive right protected by the NLRA and is the foundation on which the Act and Federal labor policy rest.” SolarCity Corp. , 2015 WL 9315535, at *2 ; see also NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 33 (1937) (“Th at [§ 7 right] is a fundamental right. Employees have as clear a ri ght to organize and select their representatives for lawful purposes as the [employer] has to or ganize its business and sel ect its own officers and agents.”). The NLRB’s position is not that there is a substantive right to utilize a particular procedure, such as Rule 23, or to bring a legal action in a particul ar forum; it is that “employers may not compel employees to waive their NLRAright to collectivel y pursue litigation of employment claims in allforums, arbitral and judicial.” D. R. Horton, Inc. , 2012 WL 36274, at *16. 5 The NLRB has acknowledged th at “arbitration must be treat ed as the equivalent of a

5 Thus, we need not, and do not, decide what procedures for collective legal action may or may not be imposed via a mandatory arbitration provision.No. 16-1385 NLRB v. Alt. Entm’t Page 12

judicial forum.” SolarCity Corp. , 2015 WL 9315535, at *5 n.15 (citing Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20 (1991)).
The best indication that the right to concerted activity is a substantive right is the structure
of the NLRA. See Lewis , 823 F.3d at 1160. In fact, “Section 7 is the NLRA’s only substantive provision.” Id . Section 7 establishes the right to con certed activity, and “[e]very other provision
of the statute serves to enforce the rights Section 7 protects.” Id. Section 8, for example, specifies that it is an unfair labor practice to interfere with § 7 rights. 29 U.S.C. § 158. Section 11 specifies the procedures the NLRB follows in investigating unfair labor practices, 29 U.S.C. § 161, and § 10 specifies the procedures the NLRA follows in preventing unfair labor practices, 29 U.S.C. § 160. Section 9 establishes procedur es for collective bargaining and presenting grievances. 29 U.S.C. § 159. The structure of the NLRA, in whic h the other sections establish procedures for protecting the ri ght established in § 7, does not make sense unless the right established in § 7 is a substantive right.
At the very least, the NLRB’s determination th at the right to concerted legal activity is substantive, see SolarCity Corp. , 2015 WL 9315535, at *2, is entitled to Chevron deference, see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842 (1984). “When a court reviews an agency’s construction of the statute which it administers,” the agency is entitled to deference unless Congress has unamb iguously expressed its intent. Chevron , 467 U.S. at 842– 43; see generally Cass R. Sunstein, Chevron Step Zero , 92 V A

. L. REV . 187, 208–09 (2006) (referring to threshold questions about judicial re view of agency interpretation of statutes, such as whether the agency administers the statute, as Chevron Step Zero). Reviewing an agency’s interpretation of a statute it admi nisters, the court’s first step is to determine whether Congress’s
intent is clear. Chevron , 467 U.S. at 842–43. At the second st ep, “if the statute is silent or ambiguous with respect to the spec ific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.

The NLRB administers the NLRA. See 29 U.S.C. §§ 153–155; see also, e.g. , United Food
& Commercial Workers Union , 484 U.S. at 123 (applying Chevron deference to the NLRB’s interpretation of the NLRA). Reaching the first step, Congress di d not clearly express the intent to make the right to concerted activity procedural . If anything, by structuring the NLRA so thatNo. 16-1385 NLRB v. Alt. Entm’t Page 13

all of the other sections impl ement procedures to enforce § 7, Congress clearly expressed the intent to make the right to concerted activity substantive; at most, because the text does not explicitly say whether the right is substantive or procedural , the NLRA is ambiguous as to whether the right to concerted activ ity is procedural or substantive. Reaching the second step, if the NLRA is ambiguous, then we must decide wh ether the NLRB’s determin ation that the right to concerted activity is substantive “is based on a permissible construc tion of the statute.”
Chevron , 467 U.S. at 843. The Supreme Court has he ld that the right to concerted activity is
“fundamental.” Jones & Laughlin Steel Corp. , 301 U.S. at 33. The Court has also found that an employment contract that “discourage[s],” a discharged employee from challenging his discharge “through a labor organiza tion or his chosen re presentatives, or in any way except personally,” violates the NLRA. Nat’l Licorice , 309 U.S. at 360. In light of those holdings and the NLRA’s structure, the NLRB’s determination that § 7 creates substantive rights “is based on a permissible construction of” the NLRA. Chevron , 467 U.S. at 843.
Ultimately, we conclude that the NLRA is unambiguous and that the statute itself makes clear that the right to concerted activity is a su bstantive right. But if the NLRA is ambiguous about whether the right to concerted legal activity is a substantiv e right, at the very least the NLRB’s determination that the right is substan tive is a permissible construction of the NLRA
entitled to Chevron deference. That the NLRB is not due Chevron deference as to interpretations
of the FAA is irrelevant. Whet her the right to engage in co ncerted action—and concerted legal action—is a substantive right is solely an interpretation of the NLRA. Cf. Note, Deference and
the Federal Arbitration Act: The NLRB’s De termination of Substantive Statutory Rights , 128 H ARV

. L. REV . 907, 919 (2015).
Therefore, we disagree withthe Fifth Circuit’s holding that employers may require employees to agree to a mandatory arbitratio n provision requiring indi vidual arbitration of employment-related claims. Mandatory arbitr ation provisions that permit only individual arbitration of employment-relate d claims are illegal pursuant to the NLRA and unenforceable pursuant to the FAA’s saving clause.
AEI and amicus also point to Supreme Court cases that they say control the outcome of this case, most importantly American Express Co. v. Italian Colors Restaurant , 133 S. Ct. 2304No. 16-1385 NLRB v. Alt. Entm’t Page 14

(2013), AT&T Mobility LLC v. Concepcion , 563 U.S. 333 (2011), and Gilmer . None of these cases, nor any other Supreme Court case, compels the conclusion that it is lawful to forbid employees from pursuing collectiv e legal action regarding thei r employment-related claims.

Concepcion addresses “California’s ru le classifying most collective-arbitration waivers in
consumer contracts as unconscionable.” 563 U.S. at 340. This rule is called the Discover Bank rule because it derives from the California Supreme Court case Discover Bank v. Superior Court , 113 P.3d 1100 (Cal. 2005). In Concepcion , drawing on the genera l principle that state legislatures cannot pass laws that prohibit arbitra tion, the Supreme Court he ld that the FAA also prohibits state courts from applying generally ap plicable doctrines “in a fashion that disfavors
arbitration.” Id. at 341. The FAA prohibits such applic ation because “a court may not rely on the uniqueness of an agreement to arbitrate as a basis for a state-law ho lding that enforcement would be unconscionable, for this would enable the court to effect what . . . the state legislature
cannot.” Id. (internal quotation marks omitted). As a result, the Supreme Court held,
California’s Discover Bank rule was preempted by the FAA because “[r]equiring the availability
of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA,” id. at 344, and “stands as an obs tacle to the accomplishment and execution of the full purposes and objectives of Congress,” id. at 352 (internal quotation marks omitted).
Despite Concepcion ’s seemingly broad ruling, there are se veral factors that distinguish the arbitration provision at issue in Concepcion from the arbitration provision at issue in this case. First, Concepcion addresses a rule hostile to arbitration, and appropriately notes that the FAA was enacted specifically to address judicial hostility to arbitration. Concepcion , 563 U.S. at 339. By contrast, the NLRA is, if anything, in favor of arbitration. See generally, e.g. , United Steelworkers of Am. v. Cooper Tire & Rubber Co. , 474 F.3d 271, 277–78 (6th Cir. 2007) (noting that national labor policy favors arbitration). For example, th e NLRA explicitly allows for “voluntary arbitration to aid and encourage employers and the representatives of their employees to reach and maintain agreements concerning rates of pay, hours, and working conditions.” 29 U.S.C. § 171(b). It also permits collective ba rgaining agreements that require arbitration of employees’ individual claims. 14 Penn Plaza LLC v. Pyett , 556 U.S. 247, 251–55, 258 (2009).No. 16-1385 NLRB v. Alt. Entm’t Page 15

Second, Concepcion addresses consumer contracts. By cont rast, this case is about labor law, and specifically the rights granted by the NLRA. Relevant to both of these distinctions is the crucial point that the NLRA does not seek to limit arbitration; instead, the NLRA seeks to allow workers
to act in concert. See City Disposal Sys. , 465 U.S. at 835 (“[I]n enacting § 7 of the NLRA, Congress sought generally to equalize the bargaini ng power of the employ ee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment.”). Any provision purporting to forbid employees from engaging in “concerted activities for the pur pose of collective bargaining or other mutual aid or protection” runs afoul of the NLRA. 29 U.S.C. § 157. The problem with the AEI agreement is not that it mandates arbitration or that it prohibits collective arbitration; it is that it prohibits concerted legal action in any forum. The arbitration provi sion at issue in this case “would face the same NLRA troubles if [the employer] required its employees to use only courts,

or only rolls of the dice or tarot cards, to reso lve workplace disputes—so long as the exclusive forum provision is coupled with a restricti on on concerted activity in that forum.” Morris , 834 F.3d at 989. That is because “[t]he NLRA es tablishes a core right to concerted activity. Irrespective of the forum in which disputes are re solved, employees must be able to act in the
forum together . . . . Arbitration, like any other forum for resolving disp utes, cannot be structured
so as to exclude all concerted employee legal claims.” Id.
This case is also distinguishable from Concepcion because the Discover Bank rule is a judicially crafted state law, whereas the NLRA is a congr essionally enacted statute. Concepcion indicates that one serious problem with the Discover Bank rule is that it presents “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Concepcion , 563 U.S. at 352 (internal quotation marks omitted). Concepcion focuses on state courts’ hostility to arbitration and their rules that thwarted the congressional intent embodied by
the FAA. Id. at 341. The case before us involves the in teraction of two fede ral statutes, both of which embody the “purposes and objectives of Congress.” Id. at 352 (quoting Hines v. Davidowitz , 312 U.S. 52, 67 (1941)). We must employ th e presumption that both federal statutes can be given effect. Mancari , 417 U.S. at 551. The NLRA and FAA can be given effect because, as discussed above, the FAA’s saving clau se provides a solution for precisely the issue
before us.No. 16-1385 NLRB v. Alt. Entm’t Page 16

Although Concepcion makes clear that it is “beyond di spute that the FAA was designed to promote arbitration” and embodies a “n ational policy favoring arbitration,” Concepcion does not hold that the FAA requires enforcement of ar bitration provisions in all circumstances. Concepcion , 563 U.S. at 345–46. The text of the FAA’s saving clause precludes such a holding, because—as Congress established—an arbitration provision that runs afoul of any “grounds as exist at law or in equity for the revocation of any contract” is unenforceable. 9 U.S.C. § 2.

Italian Colors and Gilmer are similarly distinguishable from this case. In Italian Colors , merchants who accept American Express cards sued American Express for antitrust violations and “argue[d] that requiring them to litigate th eir claims individually—as they contracted to do—would contravene the policies of the antitrust laws.” Italian Colors , 133 S. Ct. at 2309. The Supreme Court held that the arbi tration provision was enforceable because “the antitrust laws do not guarantee an affordable procedural pa th to the vindication of every claim.” Id. Because it addressed a contract between companies and an alleged tension between antitrust laws and the FAA, Italian Colors does not speak to the cas e before us, which is a labor-law case involving a substantive right, rather than a procedural vehicle to vindicat e a right. Although there is no guarantee of an affordable procedural path to th e vindication of antitrust claims, the NLRA is an explicit congressional guarantee of employees’ right to engage in concerted activity, 29 U.S.C. § 157, including collective legal action, Eastex , 437 U.S. at 565–66; Brady , 644 F.3d at 673; SolarCity Corp. , 2015 WL 9315535, at *2.

Like Italian Colors , Gilmer also did not involve an arbi tration provision purporting to undermine employees’ statutory right to engage in collective action. Gilmer sued his employer under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. , and argued that the compulsory arbitr ation provision in his securiti es registration application was invalid because “compulsory arbitration of ADEAclaims pursuant to arbitration agreements
would be inconsistent with the statutory framework and purposes of the ADEA.” Gilmer , 500 U.S. at 27. The Court disagreed, and ultimate ly concluded that there was no inconsistency between mandatory arbitration and vindication of the plaintiff’s rights under the ADEA. Id. Here, in contrast, there is a conflict between th e NLRA’s explicit guarantee of employees’ right to concerted activity and an arbi tration provision that explicitlyprohibits any collective legalNo. 16-1385 NLRB v. Alt. Entm’t Page 17

action. Arbitration provisions that are illegal und er the explicit and genera lly applicable terms of
a federal statute are distinct from arbitration provisions thatmay be in tension with the underlying policy of a federal statut e. Explicitly illega l arbitration provisi ons trigger the FAA’s saving clause. “[A]rbitration agreements [are] as enforceable as other contracts, but not more
so.” Prima Paint Corp. , 388 U.S. at 404 n.12

Moreover, in both Gilmer and Italian Colors , the Court reiterated that, “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbi tral, rather than a judicial, forum.” Italian Colors , 133 S. Ct. at 2314 (quoting Mitsubishi Motors Corp. , 473 U.S. at 628); Gilmer , 500 U.S. at 26 (quoting Mitsubishi Motors Corp. , 473 U.S. at 628). Because the arbitration provis ion at issue in this case prohibits AEI’s employees from exerci sing the substantive statutory right to concerted action guaranteed by the NLRA, this case is distinct from Gilmer and Italian Colors , as well as Concepcion and Mitsubishi Motors

. Finally, even if the right to concerted legal action is procedural, rather than substantive, it is still a right guaranteed by § 7 of the NLRA. And under § 8 of the NLRA, “[i]t shall be an unfair labor practice for an employe r . . . to interfere with, restra in, or coerce employees in the exercise of the rights guaranteed in section 15 7 of this title [§ 7 of the NLRA].” 29 U.S.C. § 158. Thus, § 8 makes it illegal to force workers, as a condition of employment, to give up the right to concerted legal action, whether thatright is substantive or procedural. Nat’l Licorice
Co. , 309 U.S. at 355–61 (holding that requiring empl oyees to sign individual contracts waiving their rights to self-organization and collecti ve bargaining violates § 8 of the NLRA). An employer cannot avoid this core tenet of fede ral labor law simply by nesting a waiver of the right to collective legal action in an arbitration provision. Id. at 364 (“Obviously employers cannot set at naught the [NLRA] by inducing thei r workmen to agree not to demand performance of the duties which it imposes.”). 6

Therefore, we join the Seventh and Ninth Circuits in holding that an arbitration provision requiring employees covered by the NLRA indivi dually to arbitrate all employment-related

6 Additionally, neither the antitrust statutes at issue in Italian Colors nor the ADEA, at issue in Gilmer , contains a provision similar to § 8, further distinguishing those cases.No. 16-1385 NLRB v. Alt. Entm’t Page 18

claims is not enforceable. Such a provision violates the NLRA’s guarantee of the right to collective action and, because it violates the NLRA, falls w ithin the FAA’s saving clause.

III. DECOMMER’S DISCUSSIONS WI TH COWORKERS AN D TERMINATION

The NLRB found that AEI forbade DeCommer from discussing compensation with the
other POV technicians and fired him for doing so. Because thes e conclusions are supported by substantial evidence, we affirm.
“The deferential substantial evidence standard” that this court applies to ALJ and NLRB findings of fact means that these findings s hould be upheld “if they are supported by such relevant evidence as a reasonable mind might accep t as adequate to support a conclusion.” Local
334 , 481 F.3d at 878–79 (internal quotation marks om itted). “When there is a conflict in the testimony, ‘it is the Board’s function to resolve ques tions of fact and credibility,’ and thus this court ordinarily will not disturb credibility ev aluations by an ALJ who observed the witnesses’
demeanor.” Turnbull Cone Baking , 778 F.2d at 295 (quoting Baja’s Place , 733 F.2d at 421).

The NLRB made a factual determination that AEI forbade DeCommer from discussing compensation with his coworkers. This finding was based in part on a credibility determination made by the ALJ. AEI argues that this court should not accept the ALJ’s credibility determination because DeCommer testified that he was not sure that he was remembering the conversation with his supervisor correctly. AEI Br. at 40. DeCommer ’s testimony does not require us to overturn the ALJ’s findings.
The testimony proceeded as follows:
Q. . . . How did that conversation start? Who called whom? Who talked to who? Was it in person? A. If I remember right, Mr. Robinson was at the office that morning when I came in. There’s the main office, a nd then there’s two offices that are off the side of that, Mr. Humphrey’s and then a spare office that’s used for whatever, and Mr. Robinson was in the spare office. I came in and saw Mr. Robinson was there, went in an d asked him if he knew anything more about the pay change or what was going on with that. And he said, why don’t we talk outside, because there were some other technicians in that general office area. So he brought me outside, and it was at that point that Mr. Robinson told me that I don’t want you talking to any of the otherNo. 16-1385 NLRB v. Alt. Entm’t Page 19

technicians about this; if you have any concerns or questions, I want you to direct them to myself or Mr. Humphrey. A.R. (Hr’g Tr. at 27–28) (Page ID #33–34).
While DeCommer’s testimony indicates that he is uncertain about the details of where the conversation started, he does not indicate thathe is uncertain about the content of the
conversation. The ALJ’s determination that DeCommer remembered, a nd testified credibly about, the content of the conversation is reasonabl e. Because the ALJ’s credibility determination was reasonable, there is no basis for us to distur b it under the deferential standard of review we apply. Therefore, we affirm the NLRB’s findi ng that AEI forbade DeCommer from discussing compensation with his fellow POV technicians.
Having adopted the ALJ’s determination th at AEI forbade DeCommer from discussing compensation with his coworkers, the NLRB c oncluded that AEI disc harged DeCommer for having these discussions and bringing complaints regarding compensation to management. A.R. (Decision & Order at 2) (Page ID #348). AEI makes three argum ents why this court should not
affirm the NLRB’s conclusion that DeCommer wa s fired for engaging in protected activity. We reject them all.
First, AEI asserts it did not violate the NLRA because DeCommer’s actions were entirely self-interested, and not concerted activity at all. AEI relies primarily on Manimark Corp. v.
NLRB , 7 F.3d 547 (6th Cir. 1993). In Manimark , the employee was summoned to a meeting about a change to the company’s compen sation policy that affected only him. Id. at 550. After “expressing a purely personal complaint” that the change was unfair, the employee “added as an afterthought that he and others had complained about” certain of their working conditions. Id. Then, despite being invited to “arrange for a group of employees to meet” with management, the employee “never told any of the other employees that he was going to, or had, made complaints to management on their behalf.” Id. at 549–50. We concluded there was no evidence the employee “was acting in anyone’s interest but hi s own,” and thus the employee was not engaged in concerted activity. Id. at 551. AEI asserts that this case is like Manimark , because DeCommer’s “only concern was for hi s own paycheck.” AEI Br. at 34.No. 16-1385 NLRB v. Alt. Entm’t Page 20

However, “[i]t is well settled that ‘an i ndividual employee may be engaged in concerted activity when he acts alone.’” NLRB. v. Main St. Terrace Care Ctr. , 218 F.3d 531, 539 (6th Cir. 2000) (quoting City Disposal Sys. , 465 U.S. at 831). And an in dividual who “bring[s] truly group complaints to the attention of management ” on behalf of other em ployees is engaged in concerted activity. Manimark , 7 F.3d at 551 (quoting Meyers Indus. , 281 N.L.R.B. 882, 887 (1986)). Here, DeCommer discussed the compen sation issue with other employees on several occasions, and also told other employees about hi s conversations with management. A.R. (Hr’g Tr. at 23, 28–29, 36) (Page ID #29, 34–35, 42). Although DeCommer unquestionably was concerned about his own compensation, he also repeatedly expressed concern about how the policy change would affect other POVs. Id. at 29, 37 (Page ID #35, 43); A.R. (12/16/14 Email) (Page ID #213–15). And Humphrey even testif ied that other POVs shared DeCommer’s concerns, such that he had to schedule a series of meetings with them. A.R. (Hr’g Tr. at 115–16) (Page ID #121–22). Even if DeCommer was motivat ed in part by his own interests, there is substantial evidence to support the NLRB’s conclusion that DeCommer raised truly group complaints and was therefore engaged in concerted activity.
Second, AEI argues that the complaint did not allege that DeCo mmer was fired for discussing the compensation change with his cowo rkers. AEI Br. at 29. The Sixth Circuit has made clear that “[i]t is well established that the Board may find a violation not alleged in the complaint if the matter is related to other violati ons alleged in the complaint, is fully and fairly litigated, and no prejudice to the respondent has been alleged or established.” NLRB v. Consol.
Biscuit Co. , 301 F. App’x 411, 423 (6th Cir. 2008) (alteration in original) (quoting Action Auto
Stores , 298 N.L.R.B. 875, 876 n.2 (1990)). The compla int alleges that DeCo mmer was fired for “concertedly complain[ing] to Respondent regard ing the wages, hours, and working conditions of Respondent’s employees, by discussing Res pondent’s policies for employees who utilize privately owned vehicles on Re spondent’s behalf, and regarding the compensation of certain employees.” A.R. (Compl. at 2) (Page ID #1 53). The acts of discussing compensation and concertedly complaining about compensation are closely related, even ar guably inseparable. AEI does not deny this. AEI also does not di spute that whether De Commer discussed the compensation changes with other employees was fully litigated, and it does not identify any prejudice it suffered as a result of the alleged lack of clarity in the complaint. To the extent thatNo. 16-1385 NLRB v. Alt. Entm’t Page 21

there is any discrepancy between the complain t and the violation found by the NLRB based on the ALJ’s reasoning, the “well esta blished” criteria are met. Consol. Biscuit Co. , 301 F. App’x at
423.
AEI’s third argument is that substantia l evidence does not support the NLRB’s finding
that AEI fired DeCommer for e ngaging in protected, concerted activity. AEI Br. at 30. The Wright Line test applies to allegati ons of unlawful termination for engaging in protected, concerted activity. See NLRB v. Transp. Mgmt. Corp. , 462 U.S. 393, 397, 404 (1983) (adopting
the test announced in Wright Line , 251 N.L.R.B. 1083 ( 1980)). Under the Wright Line test, the
NLRB General Counsel first has the burden to prove that “protected conduct was a substantial or motivating factor in the” employee’s discharge. Transp. Mgmt. Corp. , 462 U.S. at 401. If the General Counsel meets this burden, the employer can present the affirma tive defense that the employee would have been fired rega rdless of the pr otected conduct. Id. In reviewing the NLRB’s application of the Wright Line test, we apply “[t]he defe rential substantial evidence standard” to findings of fact and ap plications of law to the facts. Local 334 , 481 F.3d at 879 (internal quotation marks omitted). This standard asks whether there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation marks omitted).
The ALJ concluded, and the NLRB panel a ffirmed, that the General Counsel met his burden of establishing a prima facie case that AEI discharged DeCommer for engaging in protected, concerted activity; the ALJ also conc luded, and the NLRB also affirmed, that AEI’s alternative explanation for firi ng DeCommer was pretextual and that AEI would not have fired DeCommer regardless of the protected conduct. See A.R. (Decision & Order at 1 n.2, 9–10) (Page ID #347, 355–56). In support of these conclusions, the ALJ made the factual
determinations that DeCommer exercised his NLRA rights by complaining to management and coworkers about the proposed changes to POV compensation and that management knew he engaged in protec ted activities. Id. at 10 (Page ID #356). The ALJ applied the law to those facts to determine that there was strong circumst antial evidence that DeCommer was fired for engaging in protected activities. Id. Addressing AEI’s affirma tive defense that DeCommer would have been fired anyway, the ALJ determ ined that AEI’s explanation that it firedNo. 16-1385 NLRB v. Alt. Entm’t Page 22

DeCommer because of his slipping performan ce in smart home sales was pretextual. Id. The ALJ noted that when other employees perfor med deficiently, they were coached and not immediately terminated. Id . The ALJ also noted that DeCommer still met the company’s goals even when his performance slipped, and that there was no evidence that AEI was unsatisfied with DeCommer’s performance immediately prior to his termination. Id.
This evidence is “adequate to support” th e ALJ’s factual findings and conclusion that
DeCommer was fired fo r engaging in protected, concerted activity. Local 334 , 481 F.3d at 879. Therefore we deny AEI’s request for relief fr om the NLRB’s findings and conclusions because they are supported by substantial evidence.

IV. SUMMARY ENFORCEMENT OF TH E CONCLUSION THAT BARRING EMPLOYEES FROM DISCUSSING COMP ENSATION VIOLATES THE NLRA Finally, the NLRB is entitled to summary en forcement of its order concluding that AEI violated the NLRA by including in its handbook a rule forbiddi ng employees from discussing compensation-related information. The NLRB dete rmined that AEI’s rule “prohibit[ing] an employee from making an unauthori zed disclosure of business secr ets or confidential business or customer information, including any compensation or employee salary information” is “facially invalid.” A.R. (Decision & Order at 8) (Page ID #354); Alt. Entm’t, Inc. , 2016 WL 737010 at *5 (internal quotation marks omitted). “[A]n employer unlawfully intrudes into its employees’ Section 7 rights when it prohibits employees, without justification, from discussing among themselves their wages and other te rms and conditions of employment.” Id.
According to its brief, “AEI has not excepted to the finding regarding the confidentiality policy.” AEI Br. at 19 n.1. Wh en a party “does not address or take issue with the Board’s conclusions” it “has effectively admitted the truth of those findings.” NLRB v. Gen. Fabrications Corp. , 222 F.3d 218, 231–32 (6th Cir. 2000). Th erefore, “the Board’s Order is entitled to summary affirmance.” Id. at 232. We summarily enforce the portion of the NLRB’s order concluding that AEI violated the NLRAby forbidding employees from discussing compensation-related information.No. 16-1385 NLRB v. Alt. Entm’t Page 23

V. CONCLUSION

For the reasons stated above, we GRANT the NLRB’s application to enforce its order.No. 16-1385 NLRB v. Alt. Entm’t Page 24

_____________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

_____________________________________________________ SUTTON, Circuit Judge, concurring in part and dissenting in part. When James DeCommer began working for Alternative Entertai nment, the two entered into an employment contract in which they agreed to arbitrate any employment dis putes on an individual, as opposed to a class-wide or joint, basis. In reaching this agreement, th e employer and employee contracted to do just what the Federal Arbitration Act a llows, indeed favors: to use the streamlined efficiency, informality, and low co sts of arbitration to resolve any disputes that might arise during the course of the employment relationsh ip. Case after case from the United States Supreme Court confirms the point, all while rejecting similar efforts to sidestep the imperatives of the Federal Arbitration Act, all while reject ing similar forms of hostility toward arbitration. See Am. Express Co. v. Italian Colors Rest. , 133 S. Ct. 2304 (2013); CompuCredit Corp. v.
Greenwood , 132 S. Ct. 665 (2012); AT&T Mobility LLC v. Concepcion , 563 U.S. 333 (2011); Circuit City Stores, Inc. v. Adams , 532 U.S. 105 (2001); Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20 (1991).
Today’s manifestation of hostility toward arbitration comes, oddly enough, from the National Labor Relations Board. That should surprise readers because the first Supreme Court decisions defending arbitration as a method of dispute resolution involve d labor disputes in
which unions used arbitration over th e objections of industrial employers. See United Steelworkers v. Enter. Wheel & Car Corp. , 363 U.S. 593 (1960); United Steelworkers v. Warrior & Gulf Navigation Co. , 363 U.S. 574 (1960); United Steelworkers v. American Mfg. Co. , 363 U.S. 564 (1960). And this court has many deci sions not only supporting arbitration but also making arbitration decisions nearly impervious to re view in court, all to the end of respecting the labor-relations policies underlying the National Labor Relations Ac t, all at the urging of the
Board. See, e.g. , Mich. Family Res., Inc. v. Serv. Emps. Int’l Union Local 517M , 475 F.3d 746, 753–54 (6th Cir. 2007) (en banc); Titan Tire Corp. v. United Steelworkers , 656 F.3d 368, 373–75 (6th Cir. 2011).No. 16-1385 NLRB v. Alt. Entm’t Page 25

In refusing to adhere to the mandate of th e Federal Arbitration Act and in refusing to enforce today’s arbitration agreement, the court invokes Section 7 of the National Labor Relations Act, which gives employees the “right . . . to engage in other concerted activities for the purpose of . . . mutual aid or protection.” 29 U.S.C. § 157. The right to engage in “other concerted activities,” says the court, encompasses the right to engage in class actions and thus makes this arbitration agreement unenforceable and a violation of the NLRA to boot.
With respect, the theory errs at each turn. The FAA by its words applies to this agreement. A bevy of Supreme Court decisions conf irms that it applies in this setting, including most pertinently in the context of class-action waivers. The NLRA does not make a general exception to the FAA for arbitration agreements or class-action waivers. And the NLRA does not specifically null ify such arbitration agreements through Section 7. As a matter of text and context, the right to engage in “other concerted activities” is th e right of workers to support each other in collective bargaining and ev en in litigation, but not the right to file a representative class action or to invoke any other co llective procedure. For these reasons and those elaborated below, I respectfully dissent.
Consider first the law that today’s decision nullifies. The Federal Arbitration Act says that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the re vocation of any contract.” 9 U.S.C. § 2. It does not contain an exception for labor disputes or for the NLRA. Consistent with the straightforward policy reflected in the language of the FAA, courts (and administrative agencies) must “rigorously enforce arbitration agreements according to their terms.” Italian Colors , 133 S. Ct. at 2309 (quotation omitted).
Consider next how the Suprem e Court has applied this lang uage and policy. In recent years, the Court has not hesi tated to apply the FAA to enforce class-action waivers. See Concepcion , 563 U.S. at 344. Any other approach, the C ourt reasoned, “sacrifices the principal advantage” of arbitration—its proce dural informality—and thus “creates a scheme
inconsistent with the FAA.” Id. at 344, 348. That is today’s case: Concepcion respects precisely what today’s decision slights.No. 16-1385 NLRB v. Alt. Entm’t Page 26

Nor has the Court hesitated to enforce the F AA in the context of federal workplace-rights statutes. The decisions uniformly permit worker s to waive their rights to pursue lawsuits in
federal court or use class-acti on and other collective-action pr ocedures in pursuing relief. The Court has upheld application of the FAA in every case it ha s considered involving a statutory right “that [did] not explicitly preclude arbitration.” D.R. Horton, Inc. v. NLRB , 737 F.3d 344, 357 n.8 (5th Cir. 2013). That includes federal statutes, which must contain a “contrary congressional command” to override the FAA’s mandate, CompuCredit , 132 S. Ct. at 669, and more particularly that includes federal statutes that apply exclusively in the workplace.
In Gilmer , a plaintiff argued that ar bitration was inappropriate for Age Discrimination in Employment Act claims because the arbitrator might not permit collective procedures. 500 U.S.
at 32. Notably, the Court “had no qualms in enforcing a class waiver in an arbitration agreement even though . . . the Age Discrimination in Employment Act [] expressly permitted collective
actions.” Italian Colors , 133 S. Ct. at 2311 (discussing Gilmer ). Every circuit to consider the question has concluded that an employee may waive the right to bring a collective action under the Fair Labor Standards Act, which includes the same collective-action provision as the Age Discrimination in Employment Act. See Walthour v. Chipio Windshield Repair, LLC , 745 F.3d 1326, 1336 (11th Cir. 2014); Sutherland v. Ernst & Young LLP , 726 F.3d 290, 296–97 & n.6 (2d Cir. 2013) (per curiam); Owen v. Bristol Care , 702 F.3d 1050, 1052–53 (8th Cir. 2013); Carter v. Countrywide Credit Indus. , 362 F.3d 294, 298 (5th Cir. 2004); Adkins v. Labor Ready, Inc. , 303 F.3d 496, 503 (4th Cir. 2002 ). The Second Circuit has enforced class-action waivers for Title VII claims, even where the plaintiff sought to br ing a pattern-or-practice claim, which non-government plaintiffs in that ci rcuit may bring only in class actions. Parisi v. Goldman, Sachs & Co. , 710 F.3d 483, 488 (2d Cir. 2013).
Those are the relatively hard cases. Most other workplace-rights st atutes are silent on collective action, and plaintiffs mu st rely on Rule 23 to bring a cl ass action or Rule 20 to join
their claims. The Court has made clear that thes e rules of procedure create “procedural right[s] only” (naturally enough), which ma kes them “ancillary to the litigation of substantive claims,” and thus makes them subject to waiver. Deposit Guar. Nat’l Bank v. Roper , 445 U.S. 326, 332 (1980).No. 16-1385 NLRB v. Alt. Entm’t Page 27

Consider next the language of the National Labor Relations Act. Start with the easy point. The NLRA, all agree, does not create an express exemption from the FAA or expressly prohibit class-action waivers by name, not when the NLRA was first enacted in 1935 and not through any subsequent amendments to it. In view of the Supreme Court’s FAA decisions over the last several years, th at should end this case.
Nor does the NLRA indirectly create an exception to the FAA. By giving employees the “right . . . to engage in other c oncerted activities for th e purpose of . . . mutu al aid or protection,” 29 U.S.C. § 157, and by prohibiting employers from interfering with that right, id. § 158(a)(1),
the NRLA does not cancel out the FAA. It’s not plausible that Congress was trying to create this exception to the FAA. Civil Rule 23 did not even exist then. Not until 1966 did the Federal Rules of Civil Procedure provide fo r class actions. That leaves th e possibility that this language of the NLRA, no matter the explan ation for enacting it, no matter the laws then in existence, nullifies the FAA anyway and serves to protect anemployee’s right to file a class action. I don’t
think so.
We may read Section 7 to repeal the FAA only if the conflict between the two statutes is
“irreconcilable.” Branch v. Smith , 538 U.S. 254, 273 (2003). But th e Board’s interpretation of Section 7 is not the only possible on e; it’s not even the best one. The engine of the Board’s theory has two pistons. The first is that the ri ght to engage in “other concerted activities” includes the right to bring a class action or other group lawsuit. The second is that the Board has authority to interpret the NRLA, and accordingly its interpretation of “concerted activities” must
receive Chevron deference from the courts. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council , 467 U.S. 837, 842–43 (1984). Both ideas misfire—firs t because the language of Section 7 is not sufficiently elastic to cover th is theory and second because Chevron does not give the Board authority to nullify a statute (the FAA) over which it does not have interpretive authority.
The words “concerted activity” cover “mutuall y contrived or agreed on” activities.
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); see also American Heritage Dictionary (5th ed. 2011) (“[p]lanned or accomplished together”); Webster’s New International Dictionary 553 (2d ed. 1942) (“[m]utually contrived or planned; agreed on”). As the Supreme Court has put it, Section 7 “embraces the activitie s of employees who have joined together inNo. 16-1385 NLRB v. Alt. Entm’t Page 28

order to achieve common goals.” NLRB v. City Disposal Sys. Inc. , 465 U.S. 822, 830 (1984). Under that definition, all can ag ree that when a group of employees brings a lawsuit to achieve more favorable terms of employment, they are e ngaged in “concerted activity” for mutual aid or protection. Eastex, Inc. v. NLRB , 437 U.S. 556, 565–66 & n.15 (1978); Brady v. Nat’l Football League , 644 F.3d 661, 673 (8th Cir. 2011).
The key question, which the Board and the majo rity do not confront, is what makes such
a lawsuit “concerted.” The Board assumes that , when a court or arbi trator consolidates employees’ claims through a class action or joinde r, the employees litigate concertedly. But the “concertedness” of litigation does not turn on the particular procedural form that litigation takes. An activity is “concerted” as l ong as workers mutually plan a nd support it. Whether a group of employees brings a class action, joint claims, separate claims, or whether the group supports a single-plaintiff suit, their legal action is protected if they are substantively cooperating in the litigation campaign—say by pooling money, coordinating the timing of their claims, or sharing attorneys and legal strategy. Th ese are the sort of collaborative activities— which employees can engage in of their own accord and not at th e leave of a judge—that Section 7 protects.

The first canon of construction—that words are “known by the company they keep”— confirms this interpretation. Logan v. United States , 552 U.S. 23, 31 (2007). Consider the “concerted activities” language incontext. Section 7 guarantee s workers “the right to selforganization, to form, join, or assist labo r organizations, to bargain collectively through representatives of their own choos ing, and to engage in other concerted activ ities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Employees engage in each of the listed activities—organiza tion, unionization, collective bargaining, electing representatives—on their own coll ective initiative. The same can be said about a group of employees filing a lawsuit or set of lawsuits agai nst their employer. All of these self-directed, collaborative activities are part of the “freedom of association [and] se lf-organization” that Section 7 protects. Id. § 151. But class litigation is not something that employees just do . The use of collective procedures is li mited by statute, by the rules of the forum, and, yes, by waiver. Section 7 prevents employers from interfering with employees’ attempts to assert their ownNo. 16-1385 NLRB v. Alt. Entm’t Page 29

interests through collective action; it does not create an affirm ative right to use or pursue courtroom procedures that the law carefully limits.

The related canon of ejusdem generis —the principle that when a general term follows a list of specific terms, the general term should be understood to refer to subjects akin to the specific ones—also requires us to interpret “oth er concerted activities” more narrowly than the
Board. Circuit City , 532 U.S. at 114–15. We cannot leap from the independent, real-world
activities that Section 7 enumer ates to the highly regulated, c ourtroom-bound “activities” of class and joint litigation.
The Board’s interpretation of “concerted activit ies” does not even work on its own terms.
Section 7 cannot do what the Boar d wants—guarantee a right to enga ge in the activity of a class action—because independent rules and statutes limit the use of those procedures. Employees cannot “mutually contrive or agree” to litigate as a cl ass, or even to join their claims. A judge or arbitrator makes the decision to group claims t ogether based on the procedural rules of the forum. A federal court may cer tify a class under Rule 23 only if it meets the numerosity and commonality requirements and only if the represen tative plaintiffs are typical of the class and will adequately protect its interest s. In the more specific setting of the Fair Labor Standards Act or the Age Discrimination in Employment Act, a c ourt may certify a class only if the plaintiffs who opt in are “similarly situated.” Comer v. Wal-Mart Stores, Inc. , 454 F.3d 544, 547 (6th Cir. 2006). And a court may join claims under Rule 20 onl y if they arise out of the same transaction or occurrence. All of these procedural requireme nts must be met before plaintiffs can proceed collectively, no matter what Section 7 says. It would make little sense for the “concertedness” of a litigation campaign to turn on judicial de cisions over which workers have no control. Employees participating in a litig ation campaign are still “joined together in order to achieve common goals” even if their claims are kept separate. City Disposal , 465 U.S. at 830.
Even if procedure were relevant to “c oncertedness,” there is nothing inherently
“concerted” about the class action. The purpose of Rule 23 is to enable action on behalf of absent class members, who will be bound by the result unless they op t out of the class. A single plaintiff can litigate a class acti on to completion without any interv ention by or material support from any other class members. This sort of re presentative action is not necessarily concerted. IfNo. 16-1385 NLRB v. Alt. Entm’t Page 30

anything, it risks undermining genui ne group action by permitting the representative plaintiff to stand in for all nonparticipating parties.
In addition to failing to come to grips w ith the relevant language and above all the context in which it appears, the Board’s theory cr eates a bizarre alchemy. It would mean that Section 7 guarantees an employee the right to pursue a collective action—under, say, the Age Discrimination in Employment Act—that the ADEA itself permits to be waived. Gilmer , 500 U.S. at 32. The same would be true under the FLSA and Title VII. See Walthour , 745 F.3d at 1336; Parisi , 710 F.3d at 488. Statutory interpretation prio ritizes the specific over the general. If Congress wanted to create unwaivable rights to pursue class actions or other collective lawsuits, it would place that right in the workplace-rights st atutes themselves, not in the NLRA in 1935. The Board’s theory is worse than assuming Congress would place elephants in
mouseholes. See Whitman v. Am. Trucking Ass’n , 531 U.S. 457, 468 (2001). It assumes that Congress forgot how to write statutes.
The Board seeks to sidestep these problems by saying that Section 7 “does not create a right to class certification or the equiva lent, but . . . it does create a right to pursue joint, class, or
collective claims if and as available, without the interference of an employer-imposed restraint.” Murphy Oil USA, Inc. , 361 NLRB No. 72, at *2 (O ct. 28, 2014). But the pursuit of collective litigation is a different activity from collective litigation itself. And if the concerted activity protected by Section 7 is the pursuit of collective litigation, then the Board’s interpretation accomplishes nothing. Waivers do not inhibit the right to pursue a goal; they inhibit the ability to obtain it. In this case, employees who signe d the class-action waiver can band together to lobby their employer to remove the waiver from th e contract, or they can ask a court to declare the waiver invalid on some ge nerally applicable ground. The em ployees’ pursuit of collective procedures may or may not bear fruit, but the pur suit will nonetheless be protected from
retaliation.
If the right to pursue a certain outcome ove rcame an otherwise enforceable waiver, the Board’s theory would prove too much. Empl oyees can collectively pursue any number of goals—take annual raises or more vacation days—that they might initially have waived in their employment contracts. Consider the right to a jury trial, an other procedural right that employeesNo. 16-1385 NLRB v. Alt. Entm’t Page 31

waive by entering an arbitration agreement. Absent an arbitration agreement, a group of employees would be entitled to a jury trial after demanding one pur suant to Rule 38, in the same way that a group of employees might be entitled to class certification after filing a motion under Rule 23. But the fact that employees could collec tively pursue and obtain a jury trial if they had not signed the arbitration agreement cannot render the agreement inef fective. Otherwise, Section 7 would invalidate all arbitration agreements. Similarly, the fact that employees could collectively pursue and (perhaps) obtain a cl ass action by filing a certification motion cannot invalidate the class-action waiver. Again, Secti on 7 still gives employees the right to pursue a jury trial or a collective procedure by subm itting a jury demand or certification motion and contesting the agreement’s validity. But the right to collectively pursue a certain goal cannot require courts to disregard otherwise valid waivers.

Chevron does not fix these problems. In the first place, the Board’s theory does not get out of the step-one gate. Chevron deference comes at the end, not the beginning, of the interpretive process. See Lechmere, Inc. v. NLRB , 502 U.S. 527, 536–37 (1992). For the reasons just given, the Board’s interpretation of Section 7 cannot be squared with the relevant language
and its context.
In the second place, the Board “has not beencommissioned to effectuate the policies of the Labor Relations Act so single-mindedly th at it may wholly ignore other and equally important Congressional objectives.” S. S.S. Co. v. NLRB , 316 U.S. 31, 47 (1942). By interpreting Section 7 to invalidate class-action waivers, the Board has produced a conflict with the Federal Arbitration Act, which instructs courts to “rigorously enforce arbitration agreements according to their terms.” Italian Colors , 133 S. Ct. at 2309 (quotation omitted).

The conflict between the Board’s D.R. Horton rule and the FAA means that the presumption against implied repeals sets in, and Chevron leaves the stage. Chevron deference comes into play only when a court finds a statute to be ambiguous after “employing traditional tools of statutory construction.” Chevron , 467 U.S. at 843 n.9. The presumption against implied repeals tells us to interpret ambi guous statutes to preserve earlier-e nacted laws, and thus resolves any ambiguity in Section 7. In this setting, “there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve.” I.N.S. v. St. Cyr , 533 U.S. 289, 320 n.45 (2001).No. 16-1385 NLRB v. Alt. Entm’t Page 32

The institutional rationale for Chevron deference is also missing in implied-repeal cases. When assessing whether “two statutes are capable of co-existence, it is the duty of the courts . . . to regard each as effective.” Morton v. Mancari , 417 U.S. 535, 551 (1974). Because this determination requires the courts to interpret both statutes, there is no room to defer to the
Board’s construction of the National Labor Relations Act, particularly a construction that repeals a statute outside the Board’s expertise and interpretive authority. See Nigg v. U.S. Postal Serv. , 555 F.3d 781, 786 (9th Cir. 2009); In re Stock Exchs. Option Trading Antitrust Litig. , 317 F.3d 134, 149 (2d Cir. 2003); Passamaquoddy Tribe v. Maine , 75 F.3d 784, 794 (1st Cir. 1996); see also Gordon v. N.Y. Stock Exch., Inc. , 422 U.S. 659, 686 (1975) (“[T]he determination of whether implied repeal of the antitrust laws is necessary to make the Exchange Act provisions work is a matter for the courts.”).
Trying to keep a grip on Chevron deference, the Board and the majority maintain that any
conflict between the D.R. Horton rule and the FAA is illusory. But the Board’s interpretation of Section 7 runs headlong into Concepcion . The inescapable conclusion is that, like the California Supreme Court’s prohibition on clas s waivers in consumer contract s, the Board’s prohibition on class waivers in employment contracts “creates a scheme inconsistent with the FAA.” Concepcion , 563 U.S. at 344. It is particularly notew orthy in this respect that the California Supreme Court, in a thoughtful opini on by Justice Liu, recognizes that Concepcion forecloses the
D.R. Horton rule. Iskanian v. CLS Transp. L.A., LLC , 327 P.3d 129, 141 (Cal. 2014).

The Board nonetheless claims that we can avoid the conflict through the FAA’s saving clause, which provides that courts may invalidat e arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Any employment contract is revocable on the grounds that it is illegal and, says th e Board, Section 7 of the NLRA makes the class-action waiver illegal.
That is a repackaging of arguments Concepcion already rejected. The Court held that the FAA preempted the California Supreme Court’s hol ding that class-action waivers in consumer contracts of adhesion were unconscionable. The pl aintiffs argued that the state-court rule fell within the saving clause because unconscionability is a generally applicable contract doctrine. Substitute “illegality” for “unconscionability,” and you have the Board’s argument in today’sNo. 16-1385 NLRB v. Alt. Entm’t Page 33

case. That did not work there. It should not work here. The Court did not buy the contention that the California Supreme Court’s d ecision was neutral with respect to arbitration. Unconscionability, like illegality, may be a genera lly applicable objection to any contract, but the California Supreme Court applied the doctrine in a way that interfered with the
“fundamental attributes” of arbitration. Concepcion , 563 U.S. at 344.

Just like the Board, the Concepcion plaintiffs also argued that the state-court rule did not single out arbitration agreements because it also applied to waivers of class litigation. Id. at 341. But though the rule may have applied equally to litigation, there was no mistaking that it would have a “disproportionate impact on arbitration agreements.” Id. at 342; see Kindred Nursing Ctrs. Ltd. P’ship v. Clark , No. 16-32, 581 U.S. __, slip op. at 5 (2017). The Court drove home the point by imagining other rules that would be formally neutral between arbitration and litigation but would clearly burden the former, including a thinly veiled jury requirement that made unconcscionable any agreement that failed to provide for ultimate disposition by “a panel of twelve lay arbitrators.” Concepcion , 563 U.S. at 342

. These rules, like the California Supreme Court’s ban on class waiver s, would stand as “obstacle[s] to the accomplishment of the FAA’s objectives,” and therefore could notbe preserved by the saving clause. Id. at 343. Accordingly, the Court found th at the California Supreme Court’s ban on class waivers was preempted, despite its formal neutra lity with respect to arbitration.
The Board and the majority correctly identify one difference between Concepcion and
this case: The Board’s rule derives from a federa l statute rather than stat e common law. But that hurts the Board’s position. Saving clau ses save state laws from preemption, see, e.g. , UNUM Life Ins. Co. v. Ward , 526 U.S. 358, 363 (1999); they don’t save other federal statutes enacted by the same sovereign. Federal statutes do not need to be “saved” by a coequal statute in order to
have effect. See Morris v. Ernst & Young, LLP , 834 F.3d 975, 991–92 (9th Cir. 2016), (Ikuta, J., dissenting), cert. granted , 137 S. Ct. 809 (2017).
No matter, the Board persists. Section 7 creates substantive ri ghts, and the Federal Arbitration Act does not require courts to enfor ce arbitration agreements in which parties “forgo the substantive rights afforded by [a] statute.” Gilmer , 500 U.S. at 26. But this argument asks a question; it does not answer the question. Sure, the Board may be correct that, if the right toNo. 16-1385 NLRB v. Alt. Entm’t Page 34

pursue class-action procedures is guaranteed by Section 7, then the right is substantive and
cannot be waived. But whether Sec tion 7 guarantees that right is precisely the dispute. Because
the D.R. Horton rule conflicts with the FAA, the D.R. Horton rule must yield. And because the Board has no interpretive authority over the FAA, it can’t use Chevron to inoculate its decision
from fresh review. We ask not wh ether the Board’s interpretation is reasonable, but whether it is so clearly correct that no alte rnative is available. As we have just seen, the Board’s interpretation of Section 7 is not even the best one, mu ch less the only possible one.
As for the rest of today’s decision, I agree w ith the majority that substantial evidence supports the National Labor Relations Board’ s finding that DeCommer’s termination was
unlawful.
For these reasons, I respectfully dissent.