Supreme Court Justices Seem Skeptical of State Challenge of FLRA’s Jurisdiction

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…