Fed. Labor Relations Auth. v. Mich. Army Nat'l Guard

• Decision Date: 18 December 2017
• Docket Number: No. 17-3128,17-3128
• Citation: 878 F.3d 171
• Parties: FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. MICHIGAN ARMY NATIONAL GUARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

878 F.3d 171

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner,

v.MICHIGAN ARMY NATIONAL GUARD, Respondent.

No. 17-3128

United States Court of Appeals, Sixth Circuit.

Argued: October 4, 2017

Decided and Filed: December 18, 2017

ARGUED: Zachary R. Henige, FEDERAL LABOR RELATIONS AUTHORITY, Washington, D.C., for Petitioner. Tyce R. Walters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Zachary R. Henige, Fred B. Jacob, Stephanie J. Fouse, FEDERAL LABOR RELATIONS AUTHORITY, Washington, D.C., for Petitioner. Tyce R. Walters, H. Thomas Byron III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. William R. Kudrle, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Washington, D.C., for Amicus Curiae.

Before: CLAY, ROGERS, and SUTTON, Circuit Judges.

ROGERS, J., delivered the opinion of the court in which SUTTON, J., joined, and CLAY, J., joined in part. CLAY, J. (pp. 182–83), delivered a separate opinion concurring in part and dissenting from Part III of the majority opinion.

ROGERS, Circuit Judge.

This dispute concerns the federal labor rights of National Guard technicians, who are covered by the Federal Service Labor-Management Relations Statute ("FSLMRS"), 5 U.S.C. §§ 7101 – 7135, but who may be disciplined by the state Guard generally without federal review. During administrative proceedings related to the termination of two such technicians, the Michigan Army National Guard (the "Guard") sent a letter to the employees' union representative that could be read as temporarily forbidding all private communication between union representatives and employees of the Guard. Before us for enforcement is a determination by the Federal Labor Relations Authority ("FLRA") that this letter violated federal labor law rights under the FSLMRS. The parties essentially argue past each other. The Guard argues that the letter—interpreted as a prohibition limited to ex parte termination-related contacts with potential employee witnesses—is intertwined with the Guard’s termination process and accordingly not reviewable by the FLRA. The FLRA argues that the letter—instead interpreted as a wholesale (albeit temporary) prohibition on contact by all Guard employees with union representatives regardless of purpose—violates technicians' FSLMRS rights. Accepting the FLRA’s arguable but somewhat implausible interpretation of the letter under deferential substantial-evidence review, the letter did violate the FSLMRS and was within the purview of the FLRA. So holding, we need not address the Guard’s various jurisdictional and merits arguments regarding what the FLRA did not find to be before it: a temporary prohibition limited to ex parte witness contacts related to the technician-termination proceeding. While it is accordingly proper to enforce the FLRA’s order, a modification to the proposed order is required to conform it more precisely to the basis of the FLRA’s decision.

I.

This case arises from the Guard’s decision to terminate two "dual-status" technicians. Under federal law, dual-status technicians occupy a "hybrid military-civilian position." Fisher v. Peters , 249 F.3d 433, 438 (6th Cir. 2001). They are military employees in that they must be members of the National Guard, hold a military grade, and wear an appropriate military uniform while performing military duties. 32 U.S.C. § 709(b). But they are also "Federal civilian employee[s]" who are "assigned to a civilian position." 10 U.S.C. § 10216(a). As a result, dual-status technicians are "afforded the benefits and rights generally provided for federal employees in the civil service," N.J. Air Nat'l Guard v. FLRA , 677 F.2d 276, 279 (3d Cir. 1982), including rights under the FSLMRS. See id. at 284 ; see also Lipscomb v. FLRA , 333 F.3d 611, 620 (5th Cir. 2003).

In February 2014, the Guard concluded an investigation into misconduct at its training base in Grayling, Michigan. Based on its findings, the Guard terminated two dual-status technicians. The terminated technicians appealed this decision through the Guard’s internal administrative process, in which they were represented by their union, the Laborers' International Union of North America, Local 2132, AFL-CIO (the "union").

On March 12, 2014, in connection with the administrative appeal, the Guard’s deputy general counsel (and prosecuting attorney against the technicians), Captain David Bedells, sent a letter to the technicians' union representative, Ben Banchs. The letter read as follows:

Please be advised that this office will represent the interests of [the Guard] at the administrative hearing requested by your client. Accordingly, any and all communications with employees or representatives of [the Guard] regarding this matter should be directed to this office. Any communications with employees or representatives of [the Guard] outside the presence of a[ ] [Guard] attorney are improper until such time as the administrative hearing examiner determines that further pre-hearing interviews are necessary.

Banchs responded to this letter by email on March 17, claiming that the Guard had "no legal authority to regulate communications between bargaining unit employees ... and the Union concerning this or any other employment matter." Banchs' email also expressed his concern that the Guard’s directive would prohibit the terminated technicians from contacting any union employees, including "Family Services, the Human Resources Office, the Chaplain, or even an [Inspector General]."

On March 20, Captain Bedells responded with another letter. He disputed Banchs' broad interpretation of the original letter, arguing that its "express reference to ‘regarding this matter’ " indicated that its scope was limited to "communications [that] concern matters related to the subject of the ‘administrative hearing requested by your client(s).’ " Captain Bedells also contended that "no reasonable interpretation" of his first letter would suggest that the technicians were "prohibited from ‘making contact with Family Services, the Human Resources Office, the Chaplain or even the [Inspector General].’ " Finally, the second letter also made clear that the directive from the original letter "remain[ed] in place."

The union responded by filing an unfair-labor-practice charge with the FLRA’s Chicago Regional Office, which subsequently issued a complaint. On October 23, 2015, an Administrative Law Judge for the FLRA granted the motion for summary judgment brought by the FLRA’s General Counsel, determining that the Guard committed an unfair labor practice in violation of the FSLMRS. The Guard then filed exceptions to the ALJ’s decision. The FLRA denied these exceptions, relying on its interpretation of Captain Bedells' original letter as a "sweeping command ... [that] prohibited private communications with all bargaining-unit employees." Mich. Army Nat'l Guard and Laborers' Int'l Union of N. Am., Local 2132, AFL-CIO , 69 FLRA 393, 397 (May 25, 2016) (emphasis in original). The FLRA ordered the Guard to cease and desist from "[p]rohibiting private communication between bargaining-unit employees and their Union representatives," and to post notice of its violation. Id. The Guard refused to comply. The FLRA then petitioned for enforcement of its order in the United States Court of Appeals for the Fourth Circuit pursuant to 5 U.S.C. § 7123(b). On February 7, 2017, the Fourth Circuit transferred the case to this court.

II.

A.

Our analysis ultimately depends on the scope of the letter. Here, the FLRA’s interpretation of the letter as a "sweeping command ... [that] prohibited private communications with all bargaining unit employees" is supported by substantial evidence. On its face, the letter purports to forbid "[a]ny communications with employees or representatives of [the Guard] outside the presence of [a Guard] attorney ... until such time as the administrative hearing examiner determines that further pre-hearing interviews are necessary." The letter’s plain text thus appears to ban temporarily all private union-employee communication, regardless of subject matter.

The letter’s scope is a question of fact. Accordingly, the FLRA’s interpretation of the letter’s scope is conclusive if it is "supported by substantial evidence on the record considered as a whole." 5 U.S.C. § 7123(c). The Guard argues that the sentence of the letter relied upon by the FLRA must be read in conjunction with the preceding sentence, which states that "all communications with employees or representatives of [the Guard] regarding this matter should be directed to this office" (emphasis added). According to the Guard, this narrowed the letter’s scope, such that it only prohibited private union-employee communications about the subject matter of the termination proceedings, and even then only temporarily. Therefore, says the Guard, the FLRA drastically misinterpreted the letter’s scope when it characterized the letter as a "sweeping command" that "extended far beyond the scope of the internal administrative hearings concerning the technicians' misconduct and prohibited private communications with all bargaining-unit employees." Mich. Army Nat'l Guard , 69 FLRA at 397.

However plausible the Guard’s argument may be, it was on balance reasonable, under the substantial evidence standard applicable to this case, for the FLRA to rely on the explicit language of the letter, particularly in light of the way it was understood by the recipient. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). In making this determination, we "consider the evidence contrary to the [agency’s] conclusions, but may not conduct de novo review of the record." Turnbull Cone Baking Co. of Tenn. v. NLRB , 778 F.2d 292, 295 (6th Cir. 1985). If the...