RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0285p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

FEDERAL LABOR RELATIONS AUTHORITY, 

Petitioner, 

v. 

MICHIGAN ARMY NATIONAL GUARD, 

Respondent. 

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No. 17-3128 

On Application for Enforcement of an 

Order of the Federal Labor Relations Authority; 

No. CH-CA-14-0475. 

Argued: October 4, 2017 

Decided and Filed: December 18, 2017 

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

_________________ 

COUNSEL 

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. 

 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. 

>
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 2

_________________ 

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 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 3

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, dualstatus 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 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 4

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, AFLCIO, 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 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 5

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, we 

will not disturb the FLRA’s “choice between two fairly conflicting views.” Universal Camera 

Corp. v. NLRB, 340 U.S. 474, 488 (1951); W.F. Bolin Co. v. NLRB, 70 F.3d 863, 870 (6th Cir. 

1995). 

 Here, the plain text of the letter is sufficient evidence to support the FLRA’s broad 

interpretation. As explained below, in view of the scope attributed to the letter by the FLRA, the 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 6

letter does not fall outside of FLRA jurisdiction, and substantial evidence supports the finding of 

a violation of the FSLMRS. 

B. 

 The Guard’s first argument is that the National Guard Technicians Act of 1968 precludes 

the FLRA from entertaining challenges to the Guard’s technician-termination procedures. This 

argument fails because the Guard’s broad ban on all private union-employee communications, 

including those wholly unrelated to the subject matter of the termination proceedings, cannot 

fairly be described as a regulation of the termination proceedings, and therefore falls outside the 

scope of the Technicians Act. 

 Congress enacted the Technicians Act to accommodate the competing interests created 

by the National Guard’s “unique position in the federal structure.” N.J. Air Nat’l Guard, 

677 F.2d at 278. While each state unit of the National Guard is “a state agency, under state 

authority and control,” the “activity, makeup, and function of the Guard is provided for, to a 

large extent, by federal law.” Id. at 279. The Technicians Act recognizes the federal nature of 

the National Guard by granting dual-status technicians “the benefits and rights generally 

provided for federal employees in the civil service.” Id. At the same time, however, it reserves 

to state adjutants general broad authority to make personnel decisions regarding technicians. In 

particular, the Act provides that “a technician may, at any time, be separated from his technician 

employment for cause by the adjutant general of the jurisdiction concerned.” 32 U.S.C. 

§ 709(f)(2). It also states that “an adverse action involving discharge from technician 

employment . . . shall be accomplished by the adjutant general,” id. § 709(f)(3), and prohibits 

any “right of appeal” in a technician-termination proceeding from extending beyond the adjutant 

general, id. § 709(f)(4). This reservation of authority to state adjutants general “can be viewed as 

a virtual quid pro quo for the [Act’s] grant of federal employee status.” N.J. Air Nat’l Guard, 

677 F.2d at 284. 

 The Guard contends that § 709(f) places its technician-termination procedures in the 

unreviewable discretion of the adjutant general, and therefore that the FLRA may not review 

those procedures to determine whether they comport with federal labor law. However, the 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 7

Technicians Act will only insulate the Guard’s communications ban from review if the ban was 

in fact a regulation of termination proceedings. If it was not, then it falls outside the scope of the 

adjutant general’s exclusive authority outlined in the Technicians Act. Assuming as we do that 

the Guard’s letter was a “sweeping command” that proscribed private communications between 

the union and “all bargaining-unit employees,” Mich. Army Nat’l Guard, 69 FLRA at 397, the 

FLRA’s exercise of jurisdiction did not violate the Technicians Act. It is true that “the 

Technicians Act reserves exclusive review of personnel actions affecting technicians for the state 

adjutants general.” Am. Fed’n of Gov’t Emps., Local 3936, AFL-CIO v. FLRA, 239 F.3d 66, 70 

(1st Cir. 2001). However, the Guard’s letter falls outside this reservation of authority because it 

extends beyond the regulation of technician-termination proceedings. As interpreted by the 

FLRA, the letter bans all union-employee communications, including those completely unrelated 

to the termination proceedings. Such a blanket ban on private union-employee communications 

cannot fairly be understood as regulating the termination proceedings, because it would also 

prevent employees from discussing unrelated concerns with their union representatives. Were it 

otherwise, the simple fact that the Guard had initiated disciplinary proceedings against a 

technician would permit it to temporarily proscribe all protected union-employee 

communications, including those having nothing to do with the proceedings, and which thus 

would be unlikely to affect the proceedings’ outcome. The Technicians Act does not require 

such an extraordinary result. 

 This case does not require us to decide whether the Technicians Act would preclude 

review of a more narrowly tailored directive. The Guard asserts that its letter was a “key 

procedural safeguard” intended to protect its legitimate interest in preventing advocates from 

engaging in “improper contact with potential witnesses.” Cf. Model Rule of Professional 

Conduct 4.2 cmt. 7 (prohibiting lawyers from contacting certain employees of a represented 

organization); Model Rule of Professional Conduct 3.4(b), (f) (prohibiting lawyers from 

“counsel[ing] or assist[ing] a witness to testify falsely” and from “request[ing] a person other 

than a client to refrain from voluntarily giving relevant information to another party”). The 

Guard may well have an interest that would justify some regulation of private union-witness 

contact before a termination proceeding. But because the FLRA found that the letter in this case 

was not so tailored, we need not address the question. 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 8

 Cases cited by the Guard are distinguishable. American Federation of Government 

Employees, Local 3936, AFL-CIO v. FLRA, 239 F.3d 66 (1st Cir. 2001), for instance, was a 

direct challenge to the adjutant general’s termination decision, which is not the case here. 

Similarly distinguishable are cases holding that a state National Guard is not obligated to bargain 

over union proposals to submit technician personnel decisions to binding arbitration. See N.J. 

Air Nat’l Guard, 677 F.2d at 282; Ind. Air Nat’l Guard, Hulman Field, Terre Haute, Ind. v. 

FLRA, 712 F.2d 1187, 1191 (7th Cir. 1983); State of Neb., Military Dep’t, Office of the Adjutant 

Gen. v. FLRA, 705 F.2d 945, 952 (8th Cir. 1983); Cal. Nat’l Guard v. FLRA, 697 F.2d 874, 879 

(9th Cir. 1983). These cases rest on the idea that the personnel decisions of state adjutants 

general cannot be submitted to binding arbitration, because to do so would effectively be to 

permit an appeal from the adjutant general’s decision in plain violation of § 709(f)(4). See N.J. 

Air Nat’l Guard, 677 F.2d at 282. That is not the case here. The Guard also cites a D.C. Circuit 

opinion for the proposition that the FLRA may not review “a decision that was ‘indispensable’ or 

‘integral’ to, or ‘inextricably intertwined’ with, [an] unreviewable agency action.” Fla. Health 

Scis. Ctr., Inc. v. Sec’y of Health and Human Servs., 830 F.3d 515, 519 (D.C. Cir. 2016). 

However relevant this decision might have been to the case of a narrowly tailored letter, it says 

little about a letter with the “sweeping” nature that the FLRA found in this case. 

 Finally, the Guard makes a more general argument that the court should exercise caution 

before “intruding on the military authority and personnel decisions of state adjutants general.” In 

support, the Guard points to our previous observation that dual-status technicians operate in a 

capacity that is “irreducibly military in nature.” Fisher v. Peters, 249 F.3d 433, 439 (6th Cir. 

2001) (quoting Leistiko v. Stone, 134 F.3d 817, 821 (6th Cir. 1998)). But Fisher and Leistiko 

were very different from this case. Both involved challenges to an adjutant general’s termination 

decision, in Fisher under Title VII and in Leistiko under the Rehabilitation Act. See Fisher, 

249 F.3d at 437; Leistiko, 134 F.3d at 820–21. These cases hold that because dual-status 

National Guard technician positions are irreducibly military, Title VII and the Rehabilitation Act 

simply do not apply to such positions. See Fisher, 249 F.3d at 439, 443. A parallel conclusion 

would be that FSLMRS protections do not apply to dual-status Guard technicians, but that is 

clearly not the case. See N.J. Air Nat’l Guard, 677 F.2d at 286 (“[U]nder the LaborManagement Act, the Guard still must engage in collective bargaining with a union representing 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 9

Guard technicians . . . .”); Lipscomb, 333 F.3d at 620. Assuming that the FSLMRS provides 

labor rights of any sort to dual-status technicians, which it clearly does, it is hard to see how the 

basic ability of union members to talk with union officers could not be protected. Military status, 

in short, does not flatly deprive dual-status technicians of their statutory right “to form, join, or 

assist any labor organization, . . . freely and without fear of penalty or reprisal,” 5 U.S.C. § 7102. 

C. 

 The Guard’s second argument is that the FLRA was precluded from exercising 

jurisdiction over this case by 5 U.S.C. § 7116(d), which provides that “[i]ssues which can 

properly be raised under an appeals procedure may not be raised as unfair labor practices.” The 

Guard contends that, because the union could have challenged the communications ban in the 

administrative appeal, § 7116(d) prohibits the union from challenging the ban via an unfairlabor-practice complaint. This argument is also unpersuasive in the context of an allencompassing interpretation of the letter.

 The FLRA has interpreted § 7116(d) to preclude it from exercising jurisdiction when “the 

factual predicate and the legal theory underlying an unfair labor practice complaint and a[n] . . . 

appeal are the same.” Wildberger v. FLRA, 132 F.3d 784, 787 (D.C. Cir. 1998). The Guard 

argues that the union could have attacked the communications ban in the Guard’s internal 

administrative proceedings on a similar legal theory to the one it raised before the FLRA—

namely, that the ban was overbroad in light of the Guard’s legitimate need to limit ex parte

communications. However, this argument fails because the union advanced legal theories before 

the FLRA that are different from those it would have been able to argue in the administrative 

appeal. Before the FLRA, the union contended that the ban violated the FSLMRS. Before the 

hearing examiner, by contrast, the union would have been limited to arguing that the Guard

misapplied its own personnel regulations. These are different legal arguments that present 

different issues. Whether the Guard complied with its own personnel regulations is not related to 

the separate question of whether its actions violated federal labor law. Wildberger, 132 F.3d at 

794, analogously held that § 7116(d) did not preclude the FLRA from exercising jurisdiction 

over an unfair-labor-practice claim when the employee’s prior appeal before the Merit Systems 

Protection Board (“MSPB”) did not involve the same legal theory. The fact that one legal 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 10

argument was open to the union in the administrative proceedings did not foreclose it from 

pursuing a different argument before the FLRA. 

 In response, the Guard argues that it is immaterial that the union would have had to rely 

on different sources of law in the FLRA proceedings and the administrative appeal. It bases this 

argument on Department of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882 (4th Cir. 

1992), but this reliance is misplaced. In that case, an employee of the Bureau of the Census 

challenged his termination both before the MSPB and via an unfair-labor-practice complaint. In 

holding that § 7116(d) denied jurisdiction to the FLRA, the court rejected the FLRA’s argument 

that jurisdiction was appropriate because the employee relied on different statutory provisions 

before the FLRA and the MSPB. The Guard highlights the following statement of the court: 

We do not find dispositive the fact that [the employee] cited one statutory 

provision for his [unfair-labor-practice] complaint and another for his MSPB 

procedure. All that this reveals is the obvious: that the statutory provisions 

governing the adjudication of [unfair labor practices] before the FLRA and 

grievances under the MSPB procedure are different. 

Department of Commerce, 976 F.2d at 889. However, the court’s very next sentence 

demonstrates why Department of Commerce is different from this case: “The fact that the 

separate forums are governed by separate statutory provisions cannot change the essential fact 

that the legal arguments [the employee] presented to each body were substantially the same.” 

Id. (emphasis added). The same cannot be said here. As discussed above, the union’s legal 

arguments before the FLRA were not “substantially the same” as those it could have made in the 

Guard’s internal proceeding. Accordingly, Department of Commerce is not on point. 

D. 

The Guard also argues that the FLRA’s finding of an unfair labor practice is not 

supported by substantial evidence. This argument is basically a reprise of the Guard’s argument 

that the letter should be interpreted narrowly. For the reasons given in part A, supra, the FLRA’s 

finding regarding the sweeping scope of the letter in this case is supported by substantial 

evidence. 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 11

III. 

 In conclusion, our affirmance of the FLRA’s order is based on the FLRA’s finding that 

the letter swept very broadly. The FLRA’s order can, however, be read to prohibit what the 

FLRA did not find before it: a more narrowly tailored directive. At oral argument, the Guard 

asked in the alternative that we modify the FLRA’s order to make clear that it is predicated on 

the FLRA’s interpretation of the letter as a “sweeping command” that “prohibited private 

communications with all bargaining-unit employees.” Mich. Army Nat’l Guard, 69 FLRA at 

397. We have the explicit statutory power to do so: “Upon the filing of the petition, the court 

. . . may make and enter a decree affirming and enforcing, modifying and enforcing as so 

modified, or setting aside in whole or in part the order of the Authority.” 5 U.S.C. § 7123(c) 

(emphasis added). 

Because the FLRA’s order can be read more broadly than the reasoning of its decision 

would support, it is appropriate to modify the order so as to clarify that it does not provide 

broader relief than the FLRA’s findings about the scope of the letter support. Accordingly, we 

modify the FLRA’s order as follows (additions are indicated by bolded text and deletions are 

indicated by strikethrough): 

Pursuant to § 2423.41(c) of the Authority’s Regulations and § 7118 of the Statute, 

The Respondent shall: 

1. Cease and desist from: 

(a) Making sweeping directives that prohibit private communication 

between all bargaining-unit employees and their Union representatives. 

(b) In any like or related manner, interfering with, restraining, or coercing 

bargaining-unit employees in the exercise of their rights assured by the 

Statute. 

2. Take the following affirmative actions in order to effectuate the purposes and 

policies of the Statute: 

(a) Post at its facilities where bargaining-unit employees represented by 

the Union are located, copies of the attached notice on forms to be 

furnished by the FLRA. Upon receipt of such forms, they shall be signed 

by the Adjutant General, and shall be posted and maintained for sixty 

consecutive days thereafter, in conspicuous places, including all bulletin 

boards and other places where notices to employees are customarily 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 12

posted. Reasonable steps shall be taken to ensure that such notices are not 

altered, defaced, or covered by any other material. 

(b) In addition to physical posting of paper notices, notices shall be 

distributed electronically, on the same day, as posting of the physical 

notices, such as by email, posting on an intranet or internet site, or other 

electronic means, if such are customarily used to communicate with 

bargaining-unit employees. 

(c) Pursuant to § 2423.41(e) of the Authority’s Regulations, notify the 

Regional Director, Chicago Region, FLRA, in writing, within thirty days 

from the date of this Order, as to the steps taken to comply. 

NOTICE TO ALL EMPLOYEES 

POSTED BY ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY 

The Federal Labor Relations Authority (FLRA) has found that the Michigan 

Army National Guard violated the Federal Service Labor-Management Relations 

Statute (the Statute), and has ordered us to post and abide by this notice. 

WE HEREBY NOTIFY OUR EMPLOYEES THAT: 

The Statute gives employees of the Michigan Army National Guard the following 

rights: 

To form, join, or assist any labor organization; 

To act for a labor organization in the capacity of a representative; 

To present the views of the labor organization, as a representative of a labor 

organization, to heads of agencies and other officials of the executive branch 

of the Government, Congress or other appropriate authorities; 

To engage in collective bargaining with respect to conditions of employment 

through representatives chosen by employees under the Statute; and 

To refrain from any of the activities set forth above, freely and without fear of 

penalty or reprisal. 

The Michigan Army National Guard will not violate any of these rights. More 

specifically: 

WE AFFIRM that bargaining-unit employees have the right to privately 

communicate with their union representatives about their conditions of 

employment, including disciplinary matters. 

WE WILL NOT require that all communications during a certain period 

between union representatives of the Laborers’ International Union of North 

America, Local 2132, AFL-CIO and bargaining-unit employees be conducted in 

the presence of an agency attorney. 

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce 

bargaining-unit employees in the exercise of their rights assured by the Statute. 

 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 13

Michigan Army National Guard 

Dated: _____________ 

By: _________________________________ 

 (Signature) (Title) 

This notice must remain posted for sixty consecutive days from the date of 

posting and must not be altered, defaced, or covered by any other material. 

If employees have any questions concerning this notice or compliance with any of 

its provisions, they may communicate directly with the Regional Director, 

Chicago Region, FLRA, whose address is: 224 S. Michigan Avenue, Suite 445, 

Chicago, IL, 60604, and whose telephone number is: (312) 886-3465. 

* * * 

IV.

 Subject to the above modifications, the FLRA’s petition to enforce its order is granted. 

 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 14

________________________________________________________ 

CONCURRING IN PART AND DISSENTING IN PART 

________________________________________________________ 

CLAY, Circuit Judge, concurring in part and dissenting in part. I concur in Parts I, II, 

and IV of the opinion and in the judgment. I write separately because I believe that the majority 

improperly and unnecessarily redrafts the FLRA’s order in Part III of the opinion in lieu of 

enforcing the order as written.

In February 2014, the Michigan Army National Guard (the “Guard”) terminated two 

dual-status technicians for misconduct. Dual-status technicians are arguably military employees, 

32 U.S.C. § 709(b)(2), as well as “[f]ederal civilian employee[s]” who are “assigned to a civilian 

position.” 10 U.S.C. § 10216(a). The technicians appealed their terminations through the 

internal administrative process, in which they were represented by the Laborer’s International 

Union of North America, Local 2132, AFL-CIO (the “Union”). In connection with their appeal, 

the Guard’s deputy general counsel sent a letter to the technicians’ union representative 

prohibiting “any and all communications with employees or representatives of [the Guard] 

regarding this matter” outside the presence of Guard counsel. 

The Federal Labor Relations Authority (“FLRA”) interpreted the letter to constitute a 

“complete and unqualified ban on communications” that “extended far beyond the scope of the 

internal administrative hearings concerning the technicians’ misconduct and prohibited private 

communications with all bargaining-unit employees, to include potential witnesses and even 

other bargaining-unit employees who may have been concerned about their own continued 

employment.” Michigan Army Nat’l Guard v. Laborer’s Int’l Union of N.A., Local 2132, AFLCIO, 69 F.L.R.A. 393, 395, 397 (May 25, 2016) (emphasis in original). The FLRA concluded 

that the letter “tended to interfere with employees’ right under § 7102 to participate in union 

activities” and therefore held that it constituted an unfair labor practice in violation of § 

7116(a)(1) of the Federal Service Labor-Management Relations Statute (“FSLMRS”), 5 U.S.C. 

§§ 7101-7135. Id. at 397. 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 15

Accordingly, the FLRA ordered the Guard to cease and desist from prohibiting private 

communications between bargaining unit employees and their union representatives and from 

otherwise interfering with, restraining, or coercing bargaining unit employees in the exercise of 

their rights as assured by the statute. The FLRA further ordered the Guard to post and 

electronically distribute a notice informing bargaining unit employees that the Guard had 

violated the FSLMRS and further informing them of their rights under the statute. The Guard 

refused to comply. This matter comes before the Court upon the FLRA’s petition for 

enforcement of its order. 

The panel unanimously concludes in the majority opinion in this case that substantial 

evidence supports the FLRA’s determination that the Guard’s letter constituted a violation of the 

FSLMRS. That alone should end the case. All that this Court was asked to do is review the 

propriety of the FLRA’s grant of summary judgment in favor of the Union and then grant the 

petition to enforce the order accordingly. 

Nonetheless, the majority opinion goes further and rewrites the order so as to withstand 

further scrutiny under the FLRA’s reasoning. This decision is, quite frankly, perplexing. 

Indeed, although the majority indicates that this Court has the “power” to modify the order 

pursuant to 5 U.S.C. § 7123(c), it offers no justification for doing so other than that the Guard 

asked.1

 This case does not present a situation where the Court is obligated to draft a “savings 

construction” in order to salvage as much of the order as possible. And the majority does not 

explain under what circumstances it is appropriate or expeditious for us to do so. Certainly, we 

do not want the Court to take it upon itself to redraft orders without sufficient justification. But 

the majority does not explain what makes this case special, saying only that “a modification to 

the proposed order is required to conform it more precisely to the basis of the FLRA’s decision.” 

Even this goes unexplained. Simply put, whatever circumstances might make it appropriate for 

 1

The majority opinion does include the unsupportable statement that it is modifying the FLRA’s order “to 

clarify that it does not provide broader relief than the findings about the scope of the letter can support.” The 

problem with the majority’s assertion is that the order as originally drafted is actually completely in sync with the 

reasoning supporting it, and—the majority’s rhetorical flourish notwithstanding—the majority opinion does nothing 

to explain how the order can be read more broadly than the reasoning upon which it is based. 
No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 16

the Court to rewrite such an order, the majority does not adequately explain why it thinks they 

are present here. 

The Guard created the problem giving rise to this litigation by drafting a slapdash, 

blanket prohibition on all employee communications with the Union and refused every 

opportunity to narrow it; and there is no reason why the Court should assume the obligation of 

rewriting the order to accommodate a clearly unreasonable and avoidable violation of the law—

rather than simply uphold the FLRA’s petition for enforcement of its order. 

For these reasons, I respectfully dissent from Part III of the opinion.