your honors and may it please the court twice walters for the michigan army national guard with the court's permission i'd like to reserve five minutes of time for rebuttal or in this case asks whether a federal civilian agency may second guess a letter setting out procedures to govern technician terminations hearings the letter was addressed soley to a single individual who traveled from out of town in louisiana to represent the two technicians in the proceedings and it expressly limited its directive to the subject matter of those proceedings congress answered that central question when it enacted a section seven or nine f and provided that a state military commander the michigan adjutant general shall accomplish the discipline and discharge of military technicians congress for provided that no right of appeal which might exist with respect to that authority shall extend beyond the adjutant general of the jurisdiction concerned those principles resolved this case  it might be helpful to begin by looking at the letter itself which can be found at appendix eighty five and discuss all the ways that it does demonstrate that it is a regulation of terminations proceedings so as i mentioned the letter was addressed to a single individual not to the union as a whole not to any other human members were normally at this base and that the person to whom it was addressed was a national official who had come to represent these two technicians in this adversarial terminations hearing it just to make sure i'm getting all of this it's ok from your perspective for the union to represent them yes you're wrong because in some military situations that's not even an option this is not one of them in this case you do allow unions to represent terminated employees that is correct your honor my understanding is that the employees are permitted to choose who ever they would like to represent  know you're on that that is a way you could read the letter read out of context to the letter could be understood that way your honor but for one thing this letter be any and all communications with employees regarding this matter should be directed to this office so they want to have a conversation with mr banks about what happened and the facts and what the legal strategy should be in the guard has to see you through your view would be the guard did not have the right to do that and it's also not a fair reading of the letter the guard might have the right to do that your honor only they could prevent them from talking to the union represented without people being there if this was legitimately as you said in some circumstances for instance they might not be entitled to have a union representative that's not this case and that is not this case so we're worried about absolutely so that might violate were they to do that that might violate the technician personnel regulations that govern these proceedings but it wouldn't be a because it would still fall within the section seven zero nine after bar that said this letter let's just be clear here if we read the letter or we think it's a fair reading of the letter that it bars the term employees from talking of banks without guard people there that would be an unfair labor practice no there are no precisely because it would still insofar as what that is doing is still trying to regulate determination proceedings that is authority that is committed to the adjutant general under section seven  f now if if that were suggests you really could exclude them from talking to the union you're exactly right your honor i think i think you could just you could just write a letter saying we've got this this agency thing going on and in order for it to proceed properly the union and the and its people it's represent won't talk to each other for the next month so i think that the question  letter that it wouldn't keep it from stopping such a letter letter that just says ok during the process of this particular determination of whether we're going to fire this person nobody in the the extent that this is not a regulation of the of the terminations proceeding it's within our bailey wick and we're saying you can't do it we read it as being very broad which is not a crazy reading i mean i can understand the counter argument but you know there's language in there which looks like you can't talk it looks like it even applies to the rep to the represented employee so that you don't claim either but it looks like the right so there's really two different issues there you're on of the first is whether this can reasonably be understood as a regulation of the proceedings and then second is if it is a regulation of the proceedings is it broader than necessary to accomplish that did it was it unduly interfere with union rights while being a legitimate regulation of the proceeding we think of course if something is not reasonably understood as a regulation of a proceeding it falls outside the section seven or nine f bar and there would be no problem with the authority asserting jurisdiction over it appears to be how they read it so you just you have to disagree with that reading in order for us to agree with and we emphatically disagree that reading your are understand but but but it but they get to interpret it really well the authority does not get to interpret the scope of section seven or nine at that is not a statute that is committed to them so i'm talking about reading this thing that's before thumb so you could say you could say well the in my extreme hypothetical i made it extreme so that it could be extreme dream in my extreme hypothetical the agency could say well this is necessary for the ministry of proceeding to her and of course i'm happy to discuss all the ways that the letter can only properly be read as a regulation of the terminations proceedings but again i think that the right test for this court is just could this reasonably be understood as a regulation of  just to clarify something i think the drudgery is asking but just so we're all on the same page is there deference and how the letter should read or do we defer to you do we do for the union how i would so that to the extent that what is happening is that there is a factual falls within the scope of a statute as to which the authority is not granted deference i don't think that there is a great deal of difference that should be granted the authority and to the contrary i think a certain amount of using the great there's no difference tell us how to read the letter absolutely so it is  addressed as i said to only to the individual who is representing the technicians it expressly ties itself to the subject matter of the termination proceedings and says that communications are only improper until the administrative hearing examiner who is overseeing those proceedings is appointed and that's particularly relevant your honour's because the technician personnel regulation t p r seven five to dash one commits disputes as to the availability of witnesses to the hearing examiner so all that this letter is doing is asking the the representative of these two technicians to not contact witnesses ex parte until the individual who is charged with making those determinations is  was prohibited in contact with the representative with the terminated technicians themselves that's just not a fair reading it begins by discussing at the hearing requested by your clients it's clearly i mean what this is intended to do is something akin to in civil litigation forbidding counsel from an opponent for us to have their employees point that it's client first and then it's employees later so that suggests when they wanted to be specific they used client exactly and again just described it in a very nicely tight that and if we said it's hard for us to imagine how that could be challenged under the f l r a but we read it it's much broader and as such it was a it was a violation wouldn't that totally serve your client's interests all they have to do is be careful when they write the next letter i think that would get us most of the way there you know how far w not get you all of the way other than the you have to post something saying we were wrong which who cares so a few things the first is the cease and desist letter in this particular case is very broad it prohibits us from we could narrow that too that would certainly again communication that we are that the guard is not able to prohibit private communications between bargaining unit employees and their union representatives so for instance that would prevent even the most of the witnesses just exactly that would prove even the most will be criticized a little bit but that's it the one other aspect that's very important though is that once this court suggests that the authority can criticize an overbroad regulation that is acknowledged to be an attempt at regulation that the floodgates will be open that there is nothing to stop unions who or for that matter the individual technicians who are unhappy with the way the termination proceedings are going from filing unfair labor practice after unfair labor  preserve the ability to to overturn something that is as broad as this fellow found this one to be that would go quite a long way or i think is there any the courts rewrite your letter this function and do that is well your honor obviously this would need to be if the court were were to do something like that it need to be remanded to the agency in the first instance to clarify or there's the authority i think i think there's a little communication gap going on here we started with the letter but i think what was being discussed at the end was the court correcting the the order itself not the letter and that's not so much rewriting it as invalidating part of it or as part of the relief part of the relief mike i think that we're all communicating i think that's exactly right your honor that this court would would tailor the what we consider to be very over bro ordered by the authority but again it would be important to preserve the breathing room for the action in general and to make clear that a bona fide regulation of proceedings and that your argument because the history of the cases in th like your position on this is sort of a moving target which perhaps it wouldn't be if we just looked at what the litter say and we wouldn't by the dictates of the language and i think the dictates of the language fairly read that a result be perfectly happy for you as well perfectly moderating would be rejected right you claim it's a broad reading and we would be affirming the rejection of the broad reading it's a broad letter i don't think this is not talking about the letter i'm talking about well yeah i am for the war it's a broad letter it's a problem under which we agreed with you that it could be read as very broad under the substantial evidence review and we set as very broad properly over time but so i think the dr has moved at least preserve that yes no i have a problem with that you're on you're trying to get more not more just to say that this letter is overbroad this is a snapshot in time we're looking at a lot of that research far beyond we're going to read it under substantial evidence for you is just hypothetical we're not promising anything right presuming that we did that why would why do you need more i mean when why do you need more than  a finding to be illegal of a letter that is is the letter as you read it an affirmative that would be fine your honor well that's what i was taught with the qualification that but if it were narrower we're not saying that course because what's narrower is not before it so they get to write their naira letter you get the rejection of the broad letter everybody i don't understand i never really when i read these briefs i was success rate it was like each person was trying to each why if the court feels that sometime down the road and i have no problem with the guard changing the way it deals with these types of matters where they say union if you're going to talk to a supervisor perhaps you need to talk to us i'm not talking about changing the letter at all i'm talking about a change in the relief that's ordered and part of the relief that's ordered is you have to post something saying we did something wrong and if you say the thing that we did wrong was to order certain things even though it's questionable whether this letter orders them we can say we read it as a very broad hot course because that's the way the agency read it and we're under substantial evidence review that which you can't disagree with because that's what you're arguing all right you see read it as very broad these arguments don't other sides arguments don't work and we form perming this but we're saying nothing about something that would be narrower along the lines of the way they read it and the way they read it either we're saying nothing or we have no problem with that or something that's you know an inference i mean we can't it's dictum i guess but it we can send a signal that that's not what we're saying and that's what they're concerned about right i don't  rule we could be careful about what we rule that ought to be perfectly acceptable to the interests of both sides is just that one of them would have to go back sheepishly and say we lost you know i mean but other than that everybody's interest is just furthered right just to and that that addict saying it in another situation this might be a completely different case i have no problem with that i want to make sure that i'm not misunderstanding you when we're talking about the authorities really because we want that to stand chance but it stands based on the broad reaching course yeah but let me maybe this is a way to get at that point just to just make sure i understand your position let's not have the letter come from the captain let's have the letter come from the hearing officer ok so just all that's going on is we have a hearing officer he learns that mr banks is representing the two employees he sends a letter that says ok we're going to have a hearing in two months we have some procedures about talking to witnesses and the way we'd like to do this is please don't talk to police don't have your clients talking to witnesses and tell the guards ready for that and the way it works is when the guard talks to witnesses you're allowed to be  get it i get it so you are allowed to monitor employees talking to other employees which is another way of saying talking to witnesses if it goes directly to that emanation proceeding where the input  same letter it's very careful he says talking to witnesses that also would be ok i don't know if it's just talking witnesses and if it's just coming from a supervisor captain but i see representative as it does here  months before hearing examiners even appointed to the case again that can be read read very broadly we're not but i'm i'm not i'm just i'm saying the letter is clear the letter is clear about talking to witnesses about this termination it's not ok it's not ok for them to regulate that i think that might be too broad your honor really well i don't want to tell me a lie just talking about potential witnesses in a case where the proceeding hasn't started we've in this situation the facts of the case we had a major investigation  or the events leading to the germination i can understand why they are not allowed to do it be able to talk about a terminations to the union i say again i'm confused if you're saying that bargaining unit employees can't talk to the union representative about determination no no no the the people terminated can talk to them so you're clarifying that there's no suggestion they can't use you the union right but i guess i'm i'm trying to understand their position seems legit that you should be allowed to regulate how people talk about the events leading to the terminations that seems fair game in regulating determination proceedings i think if the hearing officer is doing that if the regulations describe that's not what the regulations describe seventy five seventy five to one describes exchanging witness lists just scribes making witnesses available describes the hearing officer making relevant relevancy determinations making sure witnesses are billable making sure there aren't duplicate witnesses it doesn't talk about stopping witnesses from from talking to their representative or talking about potential witnesses that might have information in the case so the bottom line is you want the employees even employees or witnesses to the event to be able to talk to the union representative outside the guard's presence and outside the guards or the hearing examiners regulation of how that happens i think that there is i mean i'm having a hard time seeing in the civilian capacity which is what they're in here where witnesses that would have information relevant to the case couldn't talk to the union representative as they do about the case about the if you look at the regulations there's regulation seventy five to i believe it's chapter five employees in their off time talking having any kind of information that they have a concern about these events that are taking place through the letters reds can be read so broadly the authority should very clearly be  to and looking into this matter and applying the statute i'm trying to get at whether you'd be happy with the position that they're now taking i guess that's what i'm trying to get out and i'm taking it that you're not because even the limited order that they're saying this is pretty prohibit witnesses from talking to the representative for the short period and you think that even the witnesses should be able to talk i'm drawing a distinction between the people you describe who just heard something was going on and expressed and i think this is my concern your honor and again i'm not i'm just asking what your position is you would say that they couldn't even limit access to witnesses and i want to save that for another day and another letter i'm not saying there isn't a lot or that it very carefully and narrowly tailor the needs of the guard to preserve the information that's given to the hearing  you just very very brief points your honor first i just as a factual matter it's important to note that this letter was not written just by a supervisor it was written by the prosecuting attorney in the case so it was essentially written by the prosecutor that it is is a kin to judge suddens hypothetical earlier that there had not yet been a hearing examiner this was not just a supervisor talking to all union representatives saying don't speak with employees this was a prosecuting attorney addressing the letter no was the prosecuting attorney and that is in the second point your honor is that i just want to flag that the danger that is illustrated by the discussion that has just been happening which is that every time the next time the guard issues a letter setting out even the very own name nearly narrowly tailored directive the judge sudden referred to there will be another unfair labor practice and what we will have is interference with you'll have the authority deciding when  committed to the unreviewable discretion of the action in general merely having a discussion as to whether the procedures were appropriate can you explain when you heard mr heneage you heard him what his concerns were you really think there's not a way to do this i  mean you know really don't think there's a way to write these letters that protect your interest in that they will respect me so i thought he was getting pretty close to saying we're our main concern is the one that it's manipulation they write it in a way that it covers all employees about everything i can speak from self but i thought he was acknowledging the point that you do have a right to talk about the witnesses to the incident and have rules about when they talk to folks without the guard there and we don't think this can be done the one thing that i'm just very worried about the idea that every that do these can by the way be found not only by the union but by individual technicians that any technician and say oh i don't like this letter of the proceeding i don't like the way the hearing examiner did this this is now an unfair labor practice and then there is a multi year work process for something that is supposed to be within the military chain of command with is committed to the discretion of the states and suddenly the idea that this is committed to the discretion of the i mean i think i mean i guess i'm probably we're judge rogers's on this point i mean now is not the time to be making that argument the letter broadly written right you make that argument is the time when you are writing a pretty careful letter and if they're being abusive i think  guy on the panel be very receptive to that point because i agree with you that would really undermine the whole scheme but this is a case without that letter or kind of stuck i one other minor factual point your honor i did want to point out  that as my colleague mentioned that this was an issue where there was widespread allegations of theft and moonlighting on the base so in this case the employees will in many cases be synonymous with witnesses and possible defendants that this is not  the fact that it was extended to entire employees of the bargaining unit was not just an attempt to reach at this broader scope as possible it's because there were significant problems stretching throughout the base but as as i said your honor  our primary concern is of course with ensuring that what congress when congress said that these procedures shall be accomplished by the michigan adjutant general and that no appeal shall live from that that there is a reasonable amount of breathing room for the  witnesses and tracking down people without the prosecuting attorney there they're allowed to do that aren't they my understanding your honor is that there are rules where if the if the defense counsel if they're trying to speak to employees of in civil litigation for instance  a criminal case it's a murder investigation and there's you know thirty potential witnesses and the defense attorney after the indictment gets to work and starts interviewing people without the prosecutor any there that's ok isn't it in a run of the mill criminal case that might be your honor yes i'm going on what do you want to i guess i'm trying to figure out what's the what's the interest of the guard here in making sure no one defense counsel or the union doesn't talk to a witness without the guard there i'm just trying to make sure i get the the fear would be that you could have the representative or the employees essentially pressuring witnesses not to testify who are also employees of the guard not to testify are the guard people  without the representative or or if there's a lawyer he can do without them i think that's correct how is that justified that it's a one way deal to the extent that they're trying to create the procedures for their own hearing it's your honor i mean that is that  is again something that the military disciplinary proceeding is not quite the same thing as a criminal i get it i mean i'm just trying to i thought the distinction i thought the rough analogy was to employees of one of the parties that's that's what that was the analogy artemis you're talking that all of these are union members there are employees of the guard and you don't want your employees to talk without our lawyer being that's not a perfect analogy but i think