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

The state of Ohio’s bid to rid the Federal Labor Relations Authority of its jurisdiction over a cadre of employees of states’ national guards met with a bumpy reception at oral arguments before the Supreme Court Monday.

In Ohio Adjutant General’s Department v. Federal Labor Relations Authority, the parties argued over whether the 1978 Civil Service Reform Act, which set up modern federal sector labor law, empowers the FLRA to regulate the labor practices of state militias.

State national guards employ a corps of technicians, who are civilian federal employees who work in a variety of clerical, administrative and technical roles to support the National Guard’s operations. These employees, referred to as “dual status technicians” in Title 10 of the U.S. Code, are hired, fired and supervised by state national guards, but are actually federal employees, paid by the Defense Department and afforded the same rights and protections most other federal workers receive, including those associated with collective bargaining.

Ohio drew the FLRA’s ire when, in 2016, it repudiated an expired but still in-effect collective bargaining agreement with the union of technicians, distributing a memo saying that the state is neither bound by the contract nor the Civil Service Reform Act. It then cancelled the union dues payroll 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 U.S. Court of Appeals for the Sixth Circuit, where a three-judge panel ruled unanimously against the state, after which point 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 national guard should not be subject to FLRA’s jurisdiction: it’s a state militia, not a federal agency.

“Adjutant generals of state national guards are not agencies because they’re not executive departments, they’re not government corporations, and they’re not independent agencies because they’re not part of the executive branch,” he said. “The FLRA concedes all of that, but it claims that it can regulate them anyway because they work on behalf of DoD when they employ technicians. They have no power to enforce orders issued to non-agencies simply because they serve as agents or designees of agencies.”

But Justice Brett Kavanaugh questioned why this issue was just 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 in saying that the secretary of Defense shall designate the adjutant general to employ the technicians?” he said. “They’re the ones who will act on behalf of the department. They’re federal employees at a federal agency and they have collective bargaining rights, and you say that DoD should be handling this. But Congress has spoken to this, and DoD handles this through a process that is set out in statute, which has been used from 1971 to 2016 uninterrupted without any objection by Ohio.”

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

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

“But you hire, fire and supervise them,” said Justice Ketanji Brown Jackson. “What concerns me a little bit is while there might be a practical reason why DoD could be the operable agent here, it’s not up to us. As Justice Kavanaugh pointed out, we have a statute that gives these people, the dual service technicians, collective bargaining rights, and in the collective bargaining world, that means the right to sit across the table from those who hire, fire and set the terms of employment. Your task is to explain why Congress should have intended to carve you out in this situation.”

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

“As Justice [Elena] Kagan often says, if it ain’t broke, don’t fix it, and we know that it isn’t broken because either under the [pre-1978] executive orders or for decades under the statute national guards did go through this administrative process as the named responding party, and they’ve being doing so in this context,” she said. “But I think most importantly, under 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 major interference in you saying, ‘We can be designated as the employer, we can have adjunct generals hoisted on us and be given permission to bargain, but then we can’t be forced to honor our bargain. That’s basically what you’re saying.”

Nicole Reaves, assistant to the solicitor general at the Justice Department, argued the case on behalf of the FLRA. She stressed that the reason state national guards are expected to engage in collective bargaining—and submit to the rules of bargaining as set forth by the FLRA—is the same as the reason agency subcomponents or management at individual federal facilities engage in bargaining: it’s central to the right to bargain collectively to negotiate with your immediate supervisors.

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

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

“I think the hypothetical you gave wouldn’t convert them into being federal employees,” Reaves said. “If they were in fact 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.”

Toward the end of arguments, Justice Amy Coney Barrett had an uncharacteristically blunt question for Reaves.

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

“I think the latter,” Reaves replied.