Supreme Court Justices Seem Skeptical of State Challenge of FLRA’s Jurisdiction Over National Guard Civilians

The state of Ohio’s attempt to free the Federal Labor Relations Authority from its jurisdiction over a cadre of state National Guard employees met with a bumpy reception in oral arguments before the Supreme Court on Monday.

In Adjutant General of Ohio v. Federal Labor Relations Authority, the parties debated whether the Civil Service Reform Act of 1978, which created modern federal labor law, empowers the FLRA to regulate the labor practices of state militias.

The state National Guard employs a corps of technicians, who are federal civilian employees who work in a variety of clerical, administrative, and technical roles to support National Guard operations. These employees, referred to as “dual status technicians” in title 10 of the US Code, are hired, fired, and supervised by state national guardsmen, but are actually federal employees, paid by the Department of Defense, and have the same rights and protections for most others. Federal workers receive, including those related to collective bargaining.

Ohio drew the ire of the FLRA when, in 2016, it threw out an expired but still void collective bargaining agreement with the technicians’ union, issuing a memo saying the state is neither bound by the contract nor by the Civil Service Reform Act. It then revoked union wage deductions from most dues-paying members, prompting a series of unfair labor practice complaints that were upheld by the FLRA in 2020.

The state appealed that decision to the US Court of Appeals for the Sixth Circuit, where a three-judge panel ruled unanimously against the state, after which Ohio appealed to the Supreme Court, which granted certiorari to hear the case last October.

During oral arguments Monday, Ohio Solicitor General Benjamin Flowers offered a simple argument for why the state’s National Guard should not be subject to FLRA jurisdiction: It is a state militia, not a federal agency.

“The state national guard adjutant generals are not agencies because they are not executive departments, they are not government corporations, and they are not independent agencies because they are not part of the executive branch,” he said. “The FLRA acknowledges all of this but claims it can regulate them anyway because they work on behalf of the DOJ when they hire technicians. They have no power to enforce non-agency orders simply because they serve as agents or designees of agencies.”

But Judge Brett Kavanaugh questioned why the issue was coming up now, more than 40 years after the Civil Service Reform Act became law and more than 50 years since civilian National Guard employees began unionizing.

“Hasn’t Congress resolved this by saying that the secretary of defense will appoint the adjutant general to hire the technicians?” he said. “They are the ones who will act on behalf of the department. They are federal employees in a federal agency and have collective bargaining rights, and you say DoD should address this. But Congress has spoken about it, and DoD handles it through a process that’s set out in statute, which has been used from 1971 to 2016 without interruption without any opposition from Ohio.

Flowers said that since the Defense Department already pays these employees and issues regulations to state national guardsmen about their working conditions, it should be the Pentagon that engages in collective bargaining, not individual state militias.

“If the idea is that we’re acting on behalf of DoD and we’re doing collective bargaining on behalf of DoD, then DoD should be standing here instead of the adjutant general,” he said.

“But you hire them, fire them and supervise them,” said Judge Ketanji Brown Jackson. “What worries me a little bit is that while there may be a practical reason why the DoD might be the operative agent here, it’s not up to us. As Justice Kavanaugh pointed out, we have a statute that gives these people, dual service technicians, collective bargaining rights, and in the world of collective bargaining, that means the right to sit down in front of employers, lay off and set the conditions. of employment. Your job is to explain why Congress should have intended to put you in this situation.”

Justice Sonia Sotomayor was more blunt in her assessment of the situation.

“As Justice [Elena] Kagan often says, if it ain’t broke, don’t fix it, and we know it ain’t broke because or under [pre-1978] executive orders or for decades under statute, National Guardsmen went through this administrative process as a named responding party, and they are doing so in this context,” she said. “But I think the most important, according to Article 1 [of the Constitution], military matters are left to the executive branch, so we should do very little to interfere in that process. This is a great intrusion when you say, ‘We may be appointed employers, we may have adjutant generals, and be given permission to bargain, but then we cannot be bound to honor our agreement. That’s basically what you’re saying.”

Nicole Reaves, assistant attorney general at the Department of Justice, argued the case on behalf of the FLRA. She pointed out that the reason why state National Guardsmen are expected to engage in collective bargaining — and be subject to the bargaining rules set forth by the FLRA — is the same reason why subcomponents of the agency or management at individual federal facilities engage in bargaining: it’s central. the right to bargain collectively to bargain with your immediate supervisors.

“The act requires compliance by components and entities designated to act on behalf of an agency, so they must bargain with technicians and comply with FLRA orders,” she said. “[To overturn this] would overturn 50 years of collective agreements between technicians and national guards. . . [Supplanting the guards with the Defense Department] does not justify the right that technicians have to bargain with their direct supervisors. Because they have decided to accept the benefits that come with employing dual-status technicians, they must also accept the limited bargaining rights afforded to those technicians.”

Judge Neil Gorsuch expressed some concern that a ruling in favor of the FLRA could open the door to Congress seeking similar regulation of state employees whose federally funded positions, such as those related to the administration of Medicare and Medicaid. But Reaves argued that the situation is not analogous.

“I think the hypothetical you gave would not turn them into federal employees,” Reaves said. “If they were actually federal employees, and not just federally funded, and the state was given the authority to hire, fire, and supervise them in their federal roles, it would look more like petitioners .”

At the end of arguments, Judge Amy Coney Barrett had a pointed question for Reaves.

“Ohio says it would be impractical and even illegal for it to comply with the collective bargaining order issued in this case and apparently in others and you dispute that,” Barrett said. “Would you characterize it as an open question that you have the best argument for, but there’s a risk that Ohio is right, or do you think Ohio is just crazy to say that?”

“I think the latter,” Reaves replied.