Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes cases granted review on October 3, 2022
Case Granted Review: The Ohio Adjutant General’s Dep’t v. Federal Labor Relations Authority, 21-1454
The Ohio Adjutant General’s Dep’t v. Federal Labor Relations Authority, 21-1454. The Court limited the cert grant to the first question presented, which asks: “Does the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, see 5 U.S.C. §7105(g), empower it to regulate the labor practices of state militias?” The case concerns full-time employees of states’ National Guards, referred to as technicians. Technicians perform tasks including equipment maintenance, human resources, and IT. Congress made technicians federal employees to provide them with a uniform system of federal salaries and benefits and to make clear that the Federal Tort Claims Act covers them. 32 U.S.C. §709. But states retain some administrative authority over technicians, including the power to hire and fire them. See 32 U.S.C. §709(f)(2)-(4). Technicians thus have dual status as both federal and state employees. The Civil Service Reform Act gives federal employees “the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal,” including the right “to engage in collective bargaining.” 5 U.S.C. §§7102, 7102(2). The Federal Labor Relations Authority enforces these rights, see 5 U.S.C. §7105(g)(3), but it only has power over executive agencies. This case presents the question whether a state National Guard is such an executive agency when it acts in its capacity as the supervisor of technicians.
The matter began when the Federal Labor Relations Authority filed a complaint against the Ohio National Guard. An administrative law judge determined that the Ohio National Guard is covered by the Reform Act and had violated it in dealings with union officials and union members. The administrative judge ordered the Ohio National Guard’s Adjutant General to take remedial steps. The FLRA’s adjudicatory wing affirmed based on circuit court precedent, but two of its three members expressed reservations about ordering the Ohio Adjutant General to comply with the Reform Act. The Sixth Circuit affirmed. 21 F.4th 401. Citing its own precedent and precedent from other circuits, it held that “in their capacity as employers of dual-status technicians who receive the benefits and rights generally provided for federal employees in the civil service, state national guards are executive agencies.” (Quotation marks omitted.) It noted that although “each state unit of the National Guard is a state agency, under state authority and control, the activity, makeup, and function of the Guard is provided for, to a large extent, by federal law.” (Quotation marks omitted.) Thus, it concluded, “the Guard is a federal executive agency in its capacity as the employer of technicians,” and “the FLRA has jurisdiction over the Guard with respect to labor-relations issues under the [Reform Act].”
Petitioner, the Ohio Adjutant General’s Department, argues that the courts of appeals are uniformly incorrect in understanding state National Guards to be executive agencies subject to the Reform Act when supervising technicians. “Rather than organs of federal government,” it argues, “the Adjutant General, his department, and the Guard are components of Ohio’s government.” This understanding, it contends, accords with other federal statutes that “recognize that the federal government enjoys direct control over the state guards only when they are called into active duty, and often only with consent of the governor.” Finally, it argues that this understanding is consonant with the Militia Clause, U.S. Const. art. I, §8, cl. 16, which gives Congress the power only to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States,” while “reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Petitioner contends that Congress’s power to “govern” militias extends only to that “Part of” the militia “as may be employed in the Service of the United States,” which (it argues) means called up for active duty. Therefore, it says, the Tenth Amendment reserves to the states the power to regulate their National Guards’ labor practices.