Federal Labor Relations Authority v. Michigan Army National Guard
878 F.3d 171
| 6th Cir. | 2017Background
- Two Michigan Army National Guard dual‑status technicians were terminated after a misconduct investigation and appealed via the Guard’s internal administrative process; the Union represented them.
- The Guard’s deputy general counsel sent a March 12, 2014 letter to the union representative directing that any and all communications with Guard employees about “this matter” be routed to Guard counsel and forbidding communications outside the presence of a Guard attorney until the hearing examiner allowed further pre‑hearing interviews.
- The union alleged the letter constituted an unfair labor practice under the Federal Service Labor‑Management Relations Statute (FSLMRS) and filed with the FLRA; an ALJ granted summary judgment for the General Counsel and the FLRA sustained the finding that the letter was a sweeping ban on private union‑employee communications.
- The FLRA ordered the Guard to cease and desist from prohibiting private communications and to post a remedial notice; the Guard refused and the FLRA petitioned for enforcement in federal court, the case landing in the Sixth Circuit.
- The Sixth Circuit applied substantial‑evidence review to the FLRA’s factual finding that the letter operated as a broad, temporary ban and concluded that (1) substantial evidence supports the FLRA’s interpretation and (2) the ban—so interpreted—fell within FLRA jurisdiction and violated the FSLMRS.
- Because the FLRA’s form order could be read more broadly than the factual finding, the Sixth Circuit modified the order to track the FLRA’s factual premise (prohibiting sweeping directives that bar private communications between all bargaining‑unit employees and union representatives) and then enforced it; one judge concurred in part and dissented as to rewriting the order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FLRA’s interpretation that the letter imposed a sweeping ban on private union‑employee communications is supported by substantial evidence | The letter’s plain text and recipient reaction show it forbade private communications broadly | The letter must be read in context—its reference to “regarding this matter” limits it to ex parte, termination‑related witness contacts | Substantial evidence supports the FLRA’s broad interpretation; court will not reweigh factual inferences under §7123(c) review |
| Whether the Technicians Act bars FLRA review of the Guard’s directive because personnel/termination procedures are reserved to the Adjutant General | FLRA: the alleged blanket ban is not a regulation of termination procedure and thus falls outside the Act’s reservation | Guard: §709(f) makes technician termination processes unreviewable by FLRA | Held for FLRA: a sweeping ban on all union communications is not a regulation of termination proceedings and is subject to FLRA review |
| Whether 5 U.S.C. §7116(d) (exclusive availability of appeal procedures) precludes an unfair‑labor‑practice challenge | Union: the unfair‑labor‑practice claim raises different legal theories (FSLMRS rights) than the internal appeal (Guard personnel regs) | Guard: union could have raised the same issue in the administrative appeal, so FLRA jurisdiction is barred | Held for FLRA: §7116(d) doesn't bar FLRA jurisdiction because the legal theory before FLRA differed from what could be raised in the administrative process |
| Whether the FLRA’s order should be enforced as written or modified by the court | FLRA sought enforcement of its order as issued | Guard requested narrowing; one judge argued court should not rewrite FLRA order | Court enforces FLRA order but modifies its wording to conform relief to the factual basis found by the FLRA (prohibiting sweeping directives banning all private communications) |
Key Cases Cited
- Fisher v. Peters, 249 F.3d 433 (6th Cir.) (dual‑status technicians are hybrid military‑civilian positions)
- N.J. Air Nat’l Guard v. FLRA, 677 F.2d 276 (3d Cir.) (Technicians Act background and limits on bargaining)
- Lipscomb v. FLRA, 333 F.3d 611 (5th Cir.) (FSLMRS rights apply to technicians)
- Richardson v. Perales, 402 U.S. 389 (Supreme Court) (substantial evidence standard defined)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (Supreme Court) (agency factfinding: choice between conflicting views)
- Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292 (6th Cir.) (appellate review limits on agency factfinding)
- W.F. Bolin Co. v. NLRB, 70 F.3d 863 (6th Cir.) (same)
- Department of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882 (4th Cir.) (discussed re: §7116(d) and overlapping forums)
- Wildberger v. FLRA, 132 F.3d 784 (D.C. Cir.) (§7116(d) bars FLRA when legal theory and factual predicate substantially the same)