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

F EDERAL L ABOR R ELATIONS A UTHORITY , Petitioner ,

v

.

M ICHIGAN A RMY N ATIONAL G UARD , Respondent

. ┐ │ │ │ │ │ │ │ ┘ 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, a nd SUTTON, Circuit Judges.

_________________ COUNSEL

ARGUED: Zachary R. Henige, FEDERAL LA BOR 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 AUTHOR ITY, Washington, D.C., for Petitioner. Tyce R. Walters, H. Thomas Byron III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Willia m 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), de livered a separate opin ion 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. Th is dispute concerns the fede ral 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 ad ministrative 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 te mporarily forbidding al l private communication between union representatives and employees of the Guard. Before us for enforcement is a determination by the Federal Labor Relations Author ity (“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 intertwine d 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 inte rpretation of the lett er under deferential substantial-evidence review, the letter did viol ate the FSLMRS and was within the purview of the FLRA. So holding, we need not address th e 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-terminati on 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 o ccupy a “hybrid military-civilian position.” Fisher v.
Peters , 249 F.3d 433, 438 (6th Cir. 2001). They are m ilitary employees in that they must be members of the National Guard, hold a military gr ade, and wear an appropriate military uniformNo. 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 a nd rights generally provide d 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 in vestigation into misc onduct at its training base in Grayling, Michigan. Based on its fi ndings, the Guard terminated two dual-status technicians. The terminated technicians appeal ed this decision throug h 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), Captai n David Bedells, sent a
letter to the technicians’ uni on 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. Accordi ngly, any and all communications with employees or represen tatives of [the Guar d] 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 communica tions 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 termin ated 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 di sputed Banchs’ broad interpretation of the original letter, arguing that its “express reference to ‘regarding this matter’” indicated that its scope was limited to “communica tions [that] concern matters related to theNo. 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 hi s first letter would suggest that the technicians were “prohibited from ‘making contact with Fa mily Services, the Human Resources Office, the Chaplain or even the [Inspector General].’” Fi nally, the second letter also made clear that the directive from the original le tter “remain[ed] in place.”
The union responded by filing an unfair-labo r-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 gran ted the motion for summ ary 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 file d 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] prohi bited private communications with all bargaining-unit employees.” Mich. Army Nat’l Guard and Laborers’ In t’l Union of N. Am., Local 2132, AFLCIO , 69 FLRA 393, 397 (May 25, 2016) (emphasis in or iginal). The FLRA ordered the Guard to cease and desist from “[p]rohibiting private communication between bargaining-unit employees and their Union representatives,” an d to post notice of its violation. Id. The Guard refused to comply. The FLRA then petitioned for enforcemen t 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 comm and . . . [that] prohibite d private communications
with all bargaining unit employees” is supported by subs tantial evidence. Onits 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 inte rviews are necessary.” The letter’s plain textNo. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 5

thus appears to ban temporarily all private un ion-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 sent ence of the le tter 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). A ccording to the Guard, this narrowed the letter’s scope, such that it only prohibited private uni on-employee communications about the subject matter of the termination proceedi ngs, and even then only tempor arily. Therefore, says the Guard, the FLRA drastically misint erpreted the letter’s scope when it characterized the letter as a “sweeping command” that “extended far beyond the sc ope of the internal administrative hearings concerning the technicians’ misconduct an d prohibited private communications with all bargaining-unit employees.” Mich. Army Nat’l Guard , 69 FLRA at 397.
However plausible the Guard’s argument ma y 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 unders tood by the recipient.
Substantial evidence is “such re levant evidence as a reasonable mi nd 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 th is 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 reasonabl y supports more than one resolu tion 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 th e scope attributed to the letter by the FLRA, theNo. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 6

letter does not fall outside of FLRA jurisdiction, and substantia l evidence supports the finding of
a violation of the FSLMRS.

B.
The Guard’s first argument is that the Na tional Guard Technician s Act of 1968 precludes the FLRA from entertaining challenges to the Gu ard’s technician-termination procedures. This argument fails because the Guard’s broad ban on allprivate union-employee communications, including those wholly unrelated to the subject matter of the termination proceedings, cannot fairly be described as a regulation of the termin ation proceedings, and therefore falls outside the scope of the Technicians Act.
Congress enacted the Technicians Act to a ccommodate 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 Na tional Guard is “a state agency, under state authority and control,” the “activity, makeup, and function of th e Guard is provided for, to a large extent, by federal law.” Id. at 279. The Technicians Act rec ognizes the federal nature of the National Guard by granting dual-status tec hnicians “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 decisi ons regarding technicians. In particular, the Act provides that “a technician ma y, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction co ncerned.” 32 U.S.C. § 709(f)(2). It also states that “an adverse action involvi ng discharge from technician employment . . . shall be accomplished by the adjutant general,” id . § 709(f)(3), and prohibits any “right of appeal” in a technician-termina tion proceeding from extending beyond the adjutant general, id . § 709(f)(4). This reservation of authority to stat e adjutants general “c an 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 co mport with federal labor law. However, theNo. 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 “sweep ing 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 Ac t. It is true that “the
Technicians Act reserves exclusiv e review of personnel actions aff ecting 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 reservati on of authority because it extends beyond the regulation of technician-termination proceedi ngs. As interpreted by the FLRA, the letter bans allunion-employee communications, including those completely unrelated to the termination proceedings. Such a bla nket ban on private union-e mployee communications cannot fairly be understood as re gulating the termination proceed ings, because it would also prevent employees from discussing unrelated concer ns with their union representatives. Were it otherwise, the simple fact that the Guard ha d initiated disciplinary proceedings against a technician would permit it to temporarily proscribe al l protected union-employee communications, including those having nothing to do with the proceedings, and which thus would be unlikely to affect the proceedings’ ou tcome. The Technicians Act does not require such an extraordinary result.
This case does not require us to decide whether the Technician s 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 legi timate 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 c ontacting certain employ ees of a represented organization); Model Rule of Professional C onduct 3.4(b), (f) (prohi biting lawyers from “counsel[ing] or assist[ing] a witn ess to testify falsely” and fr om “request[ing] a person other
than a client to refrain from voluntarily giving relevant inform ation to another party”). The Guard may well have an interest that would ju stify some regulation of private union-witness contact before a termination proceeding. But beca use the FLRA found that th e 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 Guar d 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 te rmination decision, which is not the case here. Similarly distinguishable are case s holding that a state National Gu ard is not obligated to bargain over union proposals to submit technician perso nnel 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 arbitrati on, because to do so would effectively be to permit an appeal from the adjutant general’s decision in plain viola tion of § 709(f)(4). See N.J.
Air Nat’l Guard , 677 F.2d at 282. That is no t the case here. The Guard also cites a D.C. Circuit opinion for the proposition that the FLRA may not re view “a decision that was ‘indispensable’ or ‘integral’ to, or ‘inextrica bly 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 argum ent that the court should exercise caution before “intruding on the military authority and pers onnel decisions of state adjutants general.” In support, the Guard points to our previous observa tion that dual-status t echnicians operate in a capacity that is “irreducibl y 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 involve d 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 tec hnicians, 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 representingNo. 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-st atus 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 st atutory right “to form, join, or assist any labor organization, . . . freely and with out 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 provide s 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 ju risdiction when “the factual predicate and the legal th eory underlying an unfair labor pr actice 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 theo ry 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 b ecause 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 withits 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 pr eclude the FLRA from exercising jurisdiction over an unfair-labor-practice clai m when the employee’s prior app eal before the Merit Systems Protection Board (“MSPB”) did not involve the same legal theory. The fact that one legalNo. 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 imma terial that the union w ould 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 ca se, an employee of the Bureau of the Census challenged his termination both before the MSPB a nd 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 em ployee relied on different statutory provisions
before the FLRA and the MSPB. The Guar d highlights the following statement of the court: We do not find dispositive the fact that [the employee] cited one statutory provision for his [unfair-lab or-practice] complaint and another for his MSPB procedure. All that this reveals is the obvious: that the statut ory provisions governing the adjudication of [unfair la bor 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 statut ory provisions cannot change the essential fact
that the legal arguments [the employee] presente d 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 c ould 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 fi nding 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 narro wly. For the reasons given in part A, supra , the FLRA’s finding regarding the sweeping scope of the letter in this cas e is supported bysubstantial
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 orde r can, however, be read to prohibit what the FLRA did not find before it: a more narrowly tailo red 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 d ecree 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 le tter support. Accordingly, we modify the FLRA’s order as follo ws (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 prohibitprivate communication between all bargaining-unit employees and their Union representatives. (b) In any like or related manner, in terfering 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 ba rgaining-unit employees represented by the Union are located, copies of th e 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 cons picuous places, including all bulletin boards and other places where notic es to employees are customarilyNo. 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 physi cal posting of paper no tices, notices shall be distributed electronically, on the sa me 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, FL RA, 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 FEDE RAL LABOR RELATIONS AUTHORITY The Federal Labor Relations Authority (FLRA) has found that the Michigan Army National Guard violated the Fede ral Service Labor-Management Relations Statute (the Statute), an d has ordered us to post and abide by this notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
The Statute gives employees of the Mich igan 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 organi zation, 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 condit ions of employment through representatives chosen by em ployees under the Statute; and To refrain from any of the activities set forth above, freely an d 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 empl oyees have the right to privately communicate with their union represen tatives about their conditions of employment , including disciplinary matters

. WE WILL NOT require that all communications during a certain period between union representatives of the La borers’ 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 manne r, interfere with, restrain, or coerce bargaining-unit employees in the exercise of their rights assu red 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 sixt y consecutive days from the date of posting and must not be altered, deface d, or covered by any other material. If employees have any questions concerni ng this notice or comp liance 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 modificat ions, the FLRA’s petition to en force its order is granted.No. 17-3128 FLRA v. Mich. Army Nat’l Guard Page 14

________________________________________________________ CONCURRING IN PART A ND 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 Mi chigan Army National Guard (t he “Guard”) terminated two
dual-status technicians for misconduct. Dual-sta tus technicians are arguably military employees, 32 U.S.C. § 709(b)(2), as well as “[f]ederal civ ilian employee[s]” who ar e “assigned to a civilian position.” 10 U.S.C. § 10216(a). The technicians appealed th eir 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 connec tion with their appeal, the Guard’s deputy general couns el sent a letter to the tec hnicians’ union representative prohibiting “any and all communica tions with employees or repr esentatives of [the Guard] regarding this matter” outside th e 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 incl ude potential witn esses 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 origin al). The FLRA concluded
that the letter “tended to inte rfere with employees’ right under § 7102 to participate in union
activities” and therefore held that it constitu ted an unfair labor practice in violation of § 7116(a)(1) of the Federal Servi ce Labor-Management Relations St atute (“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 fr om prohibiting private communications between bargaining unit employ ees and their union representatives and from otherwise interfering wit h, restraining, or coercing bargaining unit employees in the exercise of their rights as assured by the statute. Th e FLRA further ordered the Guard to post and electronically distribute a notice informing ba rgaining 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 befo re 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 th e Guard’s letter constituted a violation of the
FSLMRS. That alone should end the case. All th at this Court was aske d 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 furthe r 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 indi cates that this Court has the “power” to modify the order pursuant to 5 U.S.C. § 7123(c), it offers no justif ication 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 th e order as possible. An d the majority does not explain under what circumstances it is appropriat e or expeditious for us to do so. Certainly, we do not want the Court to take it upon itself to redr aft orders without suffici ent 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 pr ecisely to the basis of the FLRA’s decision.” Even this goes unexplained. Simply put, whatev er 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—th e majority’s rhetorical flourish notwithst anding—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 majoritydoes not adequately expl ain 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 communicat ions 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 pe tition for enforcement of its order.
For these reasons, I respectfully dissen t from Part III of the opinion.