Argued: October 4, 2017
On
Application for Enforcement of an Order of the Federal Labor
Relations Authority; No. CH-CA-14-0475.
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. 14-16), delivered a separate opinion concurring in part
and dissenting from Part III of the majority opinion.
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 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (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 evidence in the record
reasonably supports more than one resolution of a question of
fact, ...