National Labor Relations Board v. Alternative Entertainment, Inc.

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

NATIONAL LABOR RELATIONS BOARD, ┐

Petitioner, │

│

> No. 16-1385

v. │

│

│

ALTERNATIVE ENTERTAINMENT, INC., │

Respondent. │

┘

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 RELATIONS 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 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., Michael Rubin, ALTSHULER BERZON LLP, San Francisco, California, for

Amici Curiae.

MOORE, J., delivered the opinion of the 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. Petitioner National Labor Relations Board

(NLRB) seeks enforcement of a Decision and Order of the NLRB finding that Respondent

Alternative Entertainment, Inc. (AEI) violated the National Labor Relations Act (NLRA). AEI

seeks relief from the order. The NLRB argues that AEI violated the NLRA by barring

employees from pursuing class-action litigation or collective arbitration of work-related claims.

The NLRB also contends that AEI violated the NLRA by forbidding James DeCommer, an AEI

technician, from discussing a proposed compensation change with his coworkers and by firing

DeCommer for discussing the proposed 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 until he was fired on

December 18, 2014. Administrative Record (“A.R.”) (Hr’g Tr. at 13) (Page ID #19). AEI

provides Dish Network installation 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 PROGRAM,” which states that “Disputes

between you and AEI (or any of its affiliates, officers, directors, managers or employees) relating

to your employment with the Company” must, at the election of the employee or the company,

be resolved “exclusively through binding arbitration.” 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 called ‘representative’ or

‘collective’ actions, and that a claim may not otherwise 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 disclosure of business

No. 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 changes 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 technicians 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 technician’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 problems 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, AEI added smart home service sales1 as a metric for all

technicians. Id. Smart home sales were additional services, such as mounting a customer’s

television on the wall or selling accessories to complement a customer’s home entertainment

system, that technicians sold 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 the threshold was $6.00 per call and it later increased to $10.00 per

call). Id.

At first, DeCommer excelled 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 dropped 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 that 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). Humphrey 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 also denied ever refusing to do Smart Home

Sales. Id. at 130 (Page ID #136).

The second change affected compensation 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 technicians 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 POVs 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 mile3

based on the miles driven from their 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” under this new system, estimating the 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 the 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 about 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 pay was going to stop their

proper compensation of driving their vehicle.” Id. at 23 (Page ID #29). DeCommer testified that

he had an in-person conversation 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 outside, because there were some other technicians

in that general office area. . . . [I]t was at that point that Mr. Robinson told 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 technicians the contents of the conversation with

Robinson. Id. In addition, DeCommer sent a text message to Robinson and an email to the

company president, Tom Burgess, criticizing the proposed change. 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 repeatedly referred to the POVs collectively, saying

that “[g]enerally speaking the povs are the highest 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 DeCommer) (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 the 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 expressed his concerns. A.R. (Hr’g Tr. at 30) (Page ID #36).

In that conversation, DeCommer explained to Maccoux that he had “talked with other employees

and that they had done their own figures and found that they would lose quite 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. DeCommer testified that on December 18,

General Manager Victor Humphrey said to DeCommer, “our relationship is not working out”

and fired him. Id. at 38 (Page ID #44). DeCommer asked, “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 December 18 conversation mirrors DeCommer’s, but

Humphrey additionally testified that 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 wrote, “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 charges 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 at 10–11) (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 ALJ’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 coworkers; (2) implementing rules prohibiting

unauthorized disclosure of employee compensation and salary information; and

(3) compelling employees, as a condition of employment, to sign arbitration

agreements waiving their right to pursue class or collective actions in all forums,

arbitral and judicial, the Respondent has violated Section 8(a)(1) of the Act. . . .

(2) By discharging James DeCommer for engaging in protected activity,

including discussing his concerns about salary, wages, or compensation structures

with his coworkers and bringing complaints about those issues to management,

the Respondent has violated Section 8(a)(1) of the Act.

No. 16-1385 NLRB v. Alt. Entm’t Page 7

Id. Member Miscimarra filed a separate opinion 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 determinations 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 there is a conflict in the testimony, ‘it is the

Board’s function to resolve questions of fact and credibility,’ and thus this court ordinarily will

not disturb credibility evaluations 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 the NLRB’s application of the law to facts under

the substantial evidence standard. Id. We review the NLRB’s legal conclusions de novo;

however, we defer to the NLRB’s reasonable interpretation of the National 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 statute 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 ARBITRATION OF WORK-RELATED CLAIMS

The NLRB concluded that AEI violated the NLRA by maintaining a company policy

requiring employees to agree that disputes “relating to . . . employment with the company” must

be resolved “exclusively through binding arbitration” and further agreeing that “a claim may not

be arbitrated as a class action, also called ‘representative’ or ‘collective’ 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 concluded that AEI’s arbitration provision violated

the NLRA because it prevents employees from 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 employees from taking any concerted

legal action implicates two federal statutes, the 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, irrevocable, and enforceable, save upon such grounds as exist 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 Chrysler-

Plymouth, 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 arbitration agreements more enforceable than other

contracts—“[a]s the ‘saving clause’ . . . indicates, 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 Act, 29 U.S.C. §§ 151 et seq., states that,

“Employees shall have the right to self-organization, to form, join, or assist labor organizations,

to bargain collectively through representatives of their own choosing, and to engage in other

concerted activities for the purpose of collective bargaining or other mutual aid or

protection. . . .” 29 U.S.C. § 157. Section 8 states that, “It shall 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 guaranteed 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 “illegal[ly] restrain[]” employees’ 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 arbitration of employees’

employment-related claims is a question 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 arbitration provisions mandating individual

arbitration of employment-related claims violate the NLRA and fall within the FAA’s saving

No. 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 earlier holding in D.R. Horton,

Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), that arbitration provisions mandating individual

arbitration of employment-related claims do not violate the NLRA and are enforceable under the

FAA); Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772, 776 (8th Cir. 2016) (upholding its

earlier holding in Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013), that arbitration

provisions mandating individual arbitration of employment-related 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) (holding that arbitration

provisions banning class-action litigation or collective arbitration of employment-related claims

are enforceable under the NLRA and the FAA’s saving clause, but also holding that arbitration

provisions banning representative claims under California’s Private 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 the enforceability of

arbitration provisions like the one at issue in this case.

AEI (and the Chamber of Commerce of the United 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 decision 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 FAA that supported enforcement of arbitration agreements,”

D.R. Horton, 737 F.3d at 358, the Fifth Circuit started with the wrong question. Instead of

beginning by asking which statute trumps the other, 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 addressing 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 stop to see if the 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 congressional 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 question reveals that there is no need to ask whether the NLRA

trumps the FAA. The two statutes do not conflict. 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 contractual 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 collective 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 indication that Congress intended to limit this protection 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 filed in good faith by a group

of employees to achieve more favorable terms or conditions of employment is ‘concerted

activity’ under § 7 of the National Labor Relations Act.”); SolarCity Corp., 363 N.L.R.B. 83,

2015 WL 9315535, at *2 (Dec. 22, 2015) (“This protection 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 employer violates Section 8(a)(1) by compelling employees, as a

condition of employment, to waive their right to ‘collectively pursue litigation of employment

No. 16-1385 NLRB v. Alt. Entm’t Page 11

claims in all forums, 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 provisions barring collective or class action

suits because they interfere with employees’ right to engage in concerted activity, not because

they mandate arbitration. These are grounds that would apply to any contract. Because the

NLRA makes such a contractual provision illegal on generally applicable grounds—interference

with the right to concerted activity—the FAA does 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 concerted 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 determination that “[t]he use 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) (“That [§ 7 right] is a

fundamental right. Employees have as clear a right to organize and select their representatives

for lawful purposes as the [employer] has to organize its business and select 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 particular forum; it is that “employers

may not compel employees to waive their NLRA right to collectively pursue litigation of

employment claims in all forums, arbitral and judicial.” D. R. Horton, Inc., 2012 WL 36274, at

*16.5 The NLRB has acknowledged that “arbitration must be treated 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 concerted 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 procedures for collective bargaining and presenting

grievances. 29 U.S.C. § 159. The structure of the NLRA, in which the other sections establish

procedures for protecting the right 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 that 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 unambiguously expressed its intent. Chevron, 467 U.S. at 842–

43; see generally Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 208–09 (2006)

(referring to threshold questions about judicial review 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 administers, the court’s first step is to determine whether Congress’s

intent is clear. Chevron, 467 U.S. at 842–43. At the second step, “if the statute is silent or

ambiguous with respect to the specific 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 did not clearly express the intent

to make the right to concerted activity procedural. If anything, by structuring the NLRA so that

No. 16-1385 NLRB v. Alt. Entm’t Page 13

all of the other sections implement 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 activity is procedural or substantive. Reaching the second step, if

the NLRA is ambiguous, then we must decide whether the NLRB’s determination that the right

to concerted activity is substantive “is based on a permissible construction of the statute.”

Chevron, 467 U.S. at 843. The Supreme Court has held 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 organization or his chosen representatives, 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 substantive right. But if the NLRA is ambiguous

about whether the right to concerted legal activity is a substantive right, at the very least the

NLRB’s determination that the right is substantive 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. Whether the right to engage in concerted 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 Determination of Substantive Statutory Rights,

128 HARV. L. REV. 907, 919 (2015).

Therefore, we disagree with the Fifth Circuit’s holding that employers may require

employees to agree to a mandatory arbitration provision requiring individual arbitration of

employment-related claims. Mandatory arbitration provisions that permit only individual

arbitration of employment-related 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. 2304

No. 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 collective legal action regarding their employment-related claims.

Concepcion addresses “California’s rule 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 general principle that state

legislatures cannot pass laws that prohibit arbitration, the Supreme Court held that the FAA also

prohibits state courts from applying generally applicable doctrines “in a fashion that disfavors

arbitration.” Id. at 341. The FAA prohibits such application because “a court may not rely on

the uniqueness of an agreement to arbitrate as a basis for a state-law holding 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 obstacle 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 several 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, the 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 bargaining 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 contrast, 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 bargaining power of the employee 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 purpose 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 provision 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 resolve workplace disputes—so long as the exclusive

forum provision is coupled with a restriction on concerted activity in that forum.” Morris,

834 F.3d at 989. That is because “[t]he NLRA establishes a core right to concerted activity.

Irrespective of the forum in which disputes are resolved, employees must be able to act in the

forum together. . . . Arbitration, like any other forum for resolving disputes, 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 congressionally 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 interaction of two federal 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 the 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 clause 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 dispute that the FAA was designed to

promote arbitration” and embodies a “national policy favoring arbitration,” Concepcion does not

hold that the FAA requires enforcement of arbitration 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 their 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 arbitration provision was enforceable because “the antitrust laws do

not guarantee an affordable procedural path 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 case before us, which is a labor-law case involving a

substantive right, rather than a procedural vehicle to vindicate a right. Although there is no

guarantee of an affordable procedural path to the 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 arbitration 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 arbitration provision in his securities registration application was

invalid because “compulsory arbitration of ADEA claims 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 ultimately 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 the NLRA’s explicit guarantee of employees’ right

to concerted activity and an arbitration provision that explicitly prohibits any collective legal

No. 16-1385 NLRB v. Alt. Entm’t Page 17

action. Arbitration provisions that are illegal under the explicit and generally applicable terms of

a federal statute are distinct from arbitration provisions that may be in tension with the

underlying policy of a federal statute. Explicitly illegal arbitration provisions 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 arbitral, 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 provision at issue in

this case prohibits AEI’s employees from exercising 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 employer . . . to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 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 that right is substantive or procedural. Nat’l Licorice

Co., 309 U.S. at 355–61 (holding that requiring employees to sign individual contracts waiving

their rights to self-organization and collective bargaining violates § 8 of the NLRA).

An employer cannot avoid this core tenet of federal 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 their 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 individually 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 within the FAA’s saving clause.

III. DECOMMER’S DISCUSSIONS WITH COWORKERS AND TERMINATION

The NLRB found that AEI forbade DeCommer from discussing compensation with the

other POV technicians and fired him for doing so. Because these 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 should be upheld “if they are supported by such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Local

334, 481 F.3d at 878–79 (internal quotation marks omitted). “When there is a conflict in the

testimony, ‘it is the Board’s function to resolve questions of fact and credibility,’ and thus this

court ordinarily will not disturb credibility evaluations 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, and 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 and 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 other

No. 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 that he is uncertain about the content of the

conversation. The ALJ’s determination that DeCommer remembered, and testified credibly

about, the content of the conversation is reasonable. Because the ALJ’s credibility determination

was reasonable, there is no basis for us to disturb it under the deferential standard of review we

apply. Therefore, we affirm the NLRB’s finding that AEI forbade DeCommer from discussing

compensation with his fellow POV technicians.

Having adopted the ALJ’s determination that AEI forbade DeCommer from discussing

compensation with his coworkers, the NLRB concluded that AEI discharged DeCommer for

having these discussions and bringing complaints regarding compensation to management. A.R.

(Decision & Order at 2) (Page ID #348). AEI makes three arguments why this court should not

affirm the NLRB’s conclusion that DeCommer was 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 compensation 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 his 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 his own paycheck.” AEI Br. at 34.

No. 16-1385 NLRB v. Alt. Entm’t Page 20

However, “[i]t is well settled that ‘an individual 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 individual who “bring[s] truly

group complaints to the attention of management” on behalf of other employees 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 compensation issue with other employees on several

occasions, and also told other employees about his 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 testified 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 motivated 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 DeCommer was fired for

discussing the compensation change with his coworkers. 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 violations 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 complaint alleges that DeCommer was fired for

“concertedly complain[ing] to Respondent regarding the wages, hours, and working conditions

of Respondent’s employees, by discussing Respondent’s policies for employees who utilize

privately owned vehicles on Respondent’s behalf, and regarding the compensation of certain

employees.” A.R. (Compl. at 2) (Page ID #153). The acts of discussing compensation and

concertedly complaining about compensation are closely related, even arguably inseparable.

AEI does not deny this. AEI also does not dispute that whether DeCommer 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 that

No. 16-1385 NLRB v. Alt. Entm’t Page 21

there is any discrepancy between the complaint and the violation found by the NLRB based on

the ALJ’s reasoning, the “well established” criteria are met. Consol. Biscuit Co., 301 F. App’x at

423.

AEI’s third argument is that substantial evidence does not support the NLRB’s finding

that AEI fired DeCommer for engaging in protected, concerted activity. AEI Br. at 30. The

Wright Line test applies to allegations 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 affirmative defense that the

employee would have been fired regardless of the protected conduct. Id. In reviewing the

NLRB’s application of the Wright Line test, we apply “[t]he deferential substantial evidence

standard” to findings of fact and applications 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 affirmed, 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 concluded, and the NLRB also affirmed, that AEI’s

alternative explanation for firing 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 protected activities. Id. at 10 (Page ID #356). The ALJ applied the law to those facts

to determine that there was strong circumstantial evidence that DeCommer was fired for

engaging in protected activities. Id. Addressing AEI’s affirmative defense that DeCommer

would have been fired anyway, the ALJ determined that AEI’s explanation that it fired

No. 16-1385 NLRB v. Alt. Entm’t Page 22

DeCommer because of his slipping performance in smart home sales was pretextual. Id. The

ALJ noted that when other employees performed 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” the ALJ’s factual findings and conclusion that

DeCommer was fired for engaging in protected, concerted activity. Local 334, 481 F.3d at 879.

Therefore we deny AEI’s request for relief from the NLRB’s findings and conclusions because

they are supported by substantial evidence.

IV. SUMMARY ENFORCEMENT OF THE CONCLUSION THAT BARRING

EMPLOYEES FROM DISCUSSING COMPENSATION VIOLATES THE NLRA

Finally, the NLRB is entitled to summary enforcement of its order concluding that AEI

violated the NLRA by including in its handbook a rule forbidding employees from discussing

compensation-related information. The NLRB determined that AEI’s rule “prohibit[ing] an

employee from making an unauthorized disclosure of business secrets 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 terms 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. When 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). Therefore, “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 NLRA by 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 AND DISSENTING IN PART

_____________________________________________________

SUTTON, Circuit Judge, concurring in part and dissenting in part. When James

DeCommer began working for Alternative Entertainment, the two entered into an employment

contract in which they agreed to arbitrate any employment disputes on an individual, as opposed

to a class-wide or joint, basis. In reaching this agreement, the employer and employee contracted

to do just what the Federal Arbitration Act allows, indeed favors: to use the streamlined

efficiency, informality, and low costs of arbitration to resolve any disputes that might arise

during the course of the employment relationship. 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 rejecting 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 involved labor disputes in

which unions used arbitration over the 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 decisions not only supporting arbitration but also

making arbitration decisions nearly impervious to review in court, all to the end of respecting the

labor-relations policies underlying the National Labor Relations Act, 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 the 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 confirms 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 nullify such arbitration agreements through Section 7. As a matter of text and

context, the right to engage in “other concerted activities” is the right of workers to support each

other in collective bargaining and even in litigation, but not the right to file a representative class

action or to invoke any other collective 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 revocation 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 Supreme Court has applied this language and policy. In recent

years, the Court has not hesitated to apply the FAA to enforce class-action waivers.

See Concepcion, 563 U.S. at 344. Any other approach, the Court reasoned, “sacrifices the

principal advantage” of arbitration—its procedural 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 FAA in the context of federal workplace-rights

statutes. The decisions uniformly permit workers to waive their rights to pursue lawsuits in

federal court or use class-action and other collective-action procedures in pursuing relief. The

Court has upheld application of the FAA in every case it has 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 arbitration 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 bring a pattern-or-practice claim,

which non-government plaintiffs in that circuit 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 statutes are silent on

collective action, and plaintiffs must rely on Rule 23 to bring a class action or Rule 20 to join

their claims. The Court has made clear that these rules of procedure create “procedural right[s]

only” (naturally enough), which makes 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, that should end this case.

Nor does the NLRA indirectly create an exception to the FAA. By giving employees the

“right . . . to engage in other concerted activities for the purpose of . . . mutual 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 for class actions. That leaves the possibility that this language

of the NLRA, no matter the explanation for enacting it, no matter the laws then in existence,

nullifies the FAA anyway and serves to protect an employee’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 the Board’s interpretation of

Section 7 is not the only possible one; it’s not even the best one. The engine of the Board’s

theory has two pistons. The first is that the right 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—first because the language of Section 7 is not

sufficiently elastic to cover this 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 “mutually 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 activities of employees who have joined together in

No. 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 agree that when a group of employees brings a lawsuit to achieve

more favorable terms of employment, they are engaged 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 majority do not confront, is what makes such

a lawsuit “concerted.” The Board assumes that, when a court or arbitrator consolidates

employees’ claims through a class action or joinder, 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 long as workers mutually plan and 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. These are the sort of collaborative activities—which employees can

engage in of their own accord and not at the 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 in context. Section 7 guarantees workers “the right to self-

organization, to form, join, or assist labor organizations, to bargain collectively through

representatives of their own choosing, and to engage in other concerted activities 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—organization, unionization, collective bargaining, electing

representatives—on their own collective initiative. The same can be said about a group of

employees filing a lawsuit or set of lawsuits against their employer. All of these self-directed,

collaborative activities are part of the “freedom of association [and] self-organization” that

Section 7 protects. Id. § 151. But class litigation is not something that employees just do. The

use of collective procedures is limited by statute, by the rules of the forum, and, yes, by waiver.

Section 7 prevents employers from interfering with employees’ attempts to assert their own

No. 16-1385 NLRB v. Alt. Entm’t Page 29

interests through collective action; it does not create an affirmative 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 “other 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 enumerates to the highly regulated, courtroom-bound “activities” of class

and joint litigation.

The Board’s interpretation of “concerted activities” does not even work on its own terms.

Section 7 cannot do what the Board wants—guarantee a right to engage 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 class, or even to join their claims. A judge or

arbitrator makes the decision to group claims together based on the procedural rules of the

forum. A federal court may certify a class under Rule 23 only if it meets the numerosity and

commonality requirements and only if the representative plaintiffs are typical of the class and

will adequately protect its interests. In the more specific setting of the Fair Labor Standards Act

or the Age Discrimination in Employment Act, a court 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 only if they arise out of the same transaction

or occurrence. All of these procedural requirements 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 decisions over which workers have no control.

Employees participating in a litigation 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 “concertedness,” 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 opt out of the class. A single

plaintiff can litigate a class action to completion without any intervention by or material support

from any other class members. This sort of representative action is not necessarily concerted. If

No. 16-1385 NLRB v. Alt. Entm’t Page 30

anything, it risks undermining genuine group action by permitting the representative plaintiff to

stand in for all nonparticipating parties.

In addition to failing to come to grips with the relevant language and above all the

context in which it appears, the Board’s theory creates 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 prioritizes 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 statutes 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 equivalent, 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 (Oct. 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 signed the class-action waiver can band together to

lobby their employer to remove the waiver from the contract, or they can ask a court to declare

the waiver invalid on some generally applicable ground. The employees’ pursuit of collective

procedures may or may not bear fruit, but the pursuit will nonetheless be protected from

retaliation.

If the right to pursue a certain outcome overcame an otherwise enforceable waiver, the

Board’s theory would prove too much. Employees 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, another procedural right that employees

No. 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 pursuant 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 collectively pursue and obtain a jury trial if they had

not signed the arbitration agreement cannot render the agreement ineffective. Otherwise, Section

7 would invalidate all arbitration agreements. Similarly, the fact that employees could

collectively pursue and (perhaps) obtain a class action by filing a certification motion cannot

invalidate the class-action waiver. Again, Section 7 still gives employees the right to pursue a

jury trial or a collective procedure by submitting 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 been commissioned to effectuate the policies of

the Labor Relations Act so single-mindedly that 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 ambiguous statutes to preserve earlier-enacted 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 class waivers in consumer contracts, 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 noteworthy in this respect that the California

Supreme Court, in a thoughtful opinion 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 invalidate 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 the 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 holding that class-action waivers in consumer

contracts of adhesion were unconscionable. The plaintiffs 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’s

No. 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 decision was neutral with respect to

arbitration. Unconscionability, like illegality, may be a generally 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 waivers, would stand as “obstacle[s] to the accomplishment of the

FAA’s objectives,” and therefore could not be preserved by the saving clause. Id. at

343. Accordingly, the Court found that the California Supreme Court’s ban on class waivers was

preempted, despite its formal neutrality 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 federal statute rather than state common law. But that

hurts the Board’s position. Saving clauses 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 rights, and the Federal

Arbitration Act does not require courts to enforce 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 to

No. 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 Section 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 whether the Board’s interpretation is reasonable, but whether it is

so clearly correct that no alternative is available. As we have just seen, the Board’s

interpretation of Section 7 is not even the best one, much less the only possible one.

As for the rest of today’s decision, I agree with 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.