NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALTERNATIVE ENTERTAINMENT, INC., Respondent, 858 F.3d 393

MOORE, J., delivered the opinion of the court in which WHITE, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 411-19), delivered a separate opinion concurring in part and dissenting in part. 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 “[Unauthorized disclosure of business 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 sales 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 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 ... [bjecause I had an employee that just refused to do his job to his boss.” Id. at 96-97 (Page ID #102-03). DeCom-mer, 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 DeCom-mer, 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, POVs would be compensated $0,575 per mile 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). 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 “[tjhey 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). De-Commer 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 “[generally 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 De-Commer 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 Mac-coux.

Id. at 36 (Page ID #42). 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, “Consistently 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 DeCom-mer 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. 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, 112 S.Ct. 841, 117 L.Ed.2d 79 (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 28, 484 U.S. 112, 123, 108 S.O. 413, 98 L.Ed.2d 429 (1987) (applying Chevron deference to the NLRB’s

interpretation of the NLRA). II. AEFS 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.' 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, 105 S.Ct. 3346, 87 L.Ed.2d 444 (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, 126- S.Ct. 1204, 163 L.Ed.2d 1038 (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, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (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. §

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. “[Contracts ... stipulating] ... 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, 60 S.Ct. 569, 84 L.Ed. 799 (1940). Contractual provisions that “illegal[ly] restraint ]” employees’ rights under the NLRA are unenforceable. Id. at 360, 365, 60 S.Ct. 569. 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 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).

The California Supreme Court also recently considered this question. See Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129, 141-43 (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, 173 Cal. Rptr.3d 289, 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; of. CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98, 132 S.Ct. 665, 181 L.Ed.2d 586 (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 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, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995)); see also Morton v.

Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (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, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978); see also NLRB v.

City Disposal Sys., Inc., 465 U.S. 822, 835, 104 S.Ct. 1505, 79 L.Ed.2d 839 (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 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 eon-certedly 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, 57 S.Ct. 615, 81 L.Ed. 893 (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. The NLRB has acknowledged that “arbitration must be treated as the equivalent of a judicial forum.” SolarCity Corp., 2015 WL 9315535, at *5 n.15 (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (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. §

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. §

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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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 842-43,104 S.Ct. 2778; 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, 104 S.Ct. 2778. 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 843,104 S.Ct. 2778. 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, 108 S.Ct. 413 (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 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, 104 S.Ct. 2778. The Supreme Court has held that the right to concerted activity is “fundamental.” Jones & Laughlin Steel Corp., 301 U.S. at 33, 57 S.Ct. 615.

Thé 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, 60 S.Ct. 569. 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 843,104 S.Ct. 2778.

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, — U.S. -, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013), AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (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, 131 S.Ct. 1740. This rule is called the Discover Bank rule because it derives from the California Supreme Court case Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (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, 131 S.Ct. 1740. 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, 131 S.Ct. 1740, and “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” id. at 352, 131 S.Ct. 1740 (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, 131 S.Ct. 1740. 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. If Penn Plaza LLC v. Pyett, 556 U.S. 247, 251-55, 258, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). 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, 104 S.Ct. 1505 (“[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.” Moms, 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 352,131 S.Ct. 1740 (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, 131 S.Ct. 1740. The case before us involves the interaction of two federal statutes, both of which embody the “purposes and objectives of Congress.” Id. at 352, 131 S.Ct. 1740 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). We must employ the presumption that both federal statutes can be given effect. Mancari, 417 U.S. at 551, 94 S.Ct. 2474.

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. 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, 131 S.Ct. 1740.

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, 98 S.Ct. 2505; 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, 111 S.Ct. 1647. The Court disagreed, and ultimately concluded that there was no inconsistency between mandatory arbitration and vindication of the plaintiffs 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 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. “[AJrbi-tration agreements [are] as enforceable as other contracts, but not more so.” Prima Paint Corp., 388 U.S. at 404 n.12, 87 S.Ct. 1801 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, 105 S.Ct. 3346); Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp., 473 U.S. at 628, 105 S.Ct. 3346).

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, 60 S.Ct. 569 (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, 60 S.Ct. 569 (“Obviously employers cannot set at naught the [NLRA] by indue-ing their workmen to agree not to demand performance of the duties which it imposes.”). 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 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 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 De-Commer’s “only concern was for his own, paycheck.” AEI Br. at 34. 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, 104 S.Ct. 1505). 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 Fed.Appx. 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 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 Fed. Appx. at 423. AEI’s third argument is that substantial evidence does not support the NLRB’s finding that AEI fired DeCom-mer 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, 103 S.Ct. 2469, 76 L.Ed.2d 667 (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, 103 S.Ct. 2469.

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 SSI, 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 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 De-Commer’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 SSI, 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 “prohibiting] 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. V. CONCLUSION For the reasons stated above, we GRANT the NLRB’s application to enforce its order. . These are also referred to in the record as "Smart Home Services.” . DeCommer was fired before the new system took effect. See A.R. (Hr’g Tr. at 119) (Page ID #125). . 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. . On January 13, 2017, the Supreme Court granted writs of certiorari in Morris, Lewis, and Murphy Oil and consolidated the three cases. - U.S. -, 137 S.Ct. 809, 196 L.Ed.2d 595 (2017) (granting certiorari and consolidating cases). .

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. . 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.