The Ohio Adjutant General’s Department v. Federal Labor Relations Authority

Issues 

Can the Federal Labor Relations Authority regulate the labor practices of state militias?

Oral argument: 
January 9, 2023

The Supreme Court in this case will determine whether the Federal Labor Relations Authority (“FLRA”) has jurisdiction to regulate state militia labor practices. The Ohio Adjutant General, Ohio Adjutant General’s Department, and the Ohio National Guard contend that the Ohio National Guard is under state control and that Congress has not expressly included state militias in the Federal Service Labor-Management Relations Statute, and thus the state militias are not subject to the FLRA’s jurisdiction. In contrast, the FLRA maintains that the Guard is subject to the FLRA’s jurisdiction because the statute memorialized various federal regulations providing collective bargaining rights to dual status technicians, and the FLRA’s jurisdiction is necessary to such rights. This case has significant implications for federal military power, labor relations for state militias, and the balance of power between state and federal governments.

Questions as Framed for the Court by the Parties 

Whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.

Facts 

In 2011, the Ohio National Guard (“the Guard”) signed a Collective Bargaining Agreement (“CBA”) with the American Federation of Government Employees (“the Union”), the union that represents the Guard’s technicians. The Ohio Adjutant General’s Dept., et al v. Federal Labor Relations Authority at 2–3. These technicians have various roles in the Guard, including clerk positions, administrative positions and other technical jobs. Id. at 2. The CBA between the Union and the Guard expired in 2014, and after negotiations, the parties did not reach a new agreement. Id. at 3. In January 2014, the Guard issued a memorandum indicating a re-commitment to be bound by the same topics that were in the original 2011 CBA, even though no new agreement had been made. Id. However, in 2016, the Guard announced that it would no longer bargain with the union. Id.

After this announcement, the Guard stopped automatically taking union dues from employees’ paychecks. Id. In response to this change, in March 2017, the Union filed allegations of four unfair labor practices with the Federal Labor Relations Authority (“FLRA”). Id. at 4. The Regional General Counsel of the FLRA reviewed these allegations, and as a result issued a complaint alleging the Guard had refused to negotiate in good faith when it claimed that it was no longer bound by the CBA and when it unilaterally terminated the automatic deduction of union dues. Id.

In response to this complaint, and a second similarly consolidated complaint, the Guard acknowledged that it had terminated the dues of most of the Union employees but denied that the FLRA has jurisdiction over the Guard based on the Federal Service Labor-Management Relations Statute (“Statute”). Id. at 2, 4. Specifically, the Guard argued that it is not an agency; and, that technician bargaining unit employees are not employees within the specific meaning of the Statute. Id. at 4, 5. Therefore, the Guard maintained it did not violate the Statute. Id.

The Guard appealed, and after a hearing before an Administrative Law Judge (“ALJ”) in June 2018, the ALJ determined the FLRA did have jurisdiction over the Guard, and that the Union employees had collective bargaining rights under the Statute. Id. at 5. Therefore, the ALJ determined that the Guard violated the Statute when it repudiated the 2014 CBA by terminating the automatic deduction of union dues. Id. The Guard subsequently appealed this decision within the FLRA, and the FLRA panel affirmed the ALJ’s decision in full. Id.

The Guard appealed this decision to the United States Court of Appeals for the Sixth Circuit. Id. at 2. The Sixth Circuit affirmed the FLRA order, reasoning that the Guard is an executive agency under the Statute because it employs technicians who receive “the benefits and rights generally provided for federal employees in the civil service.” Id. at 7–8. Furthermore, the Sixth Circuit found that the FLRA has jurisdiction over these technicians because it has authority over uniformed services, of which these union members are a part. Id. at 9.

The United States Supreme Court granted certiorari on October 3, 2022, limited to the question of whether the FLRA had jurisdiction to regulate state militias. Supreme Court Order on October 3, 2022.

Analysis 

THE SCOPE OF THE FLRA’S AUTHORITY

The Ohio Adjutant General, Ohio Adjutant General’s Department, and the Ohio National Guard (collectively, “Ohio”) assert that the Federal Labor Relations Authority (“FLRA”) has authority over five types of entities: those specifically named in the Statute, as well as labor organizations, executive departments, government corporations, and independent establishments. Brief for Petitioners, The Ohio Adjutant General’s Dep’t, et al. at 22–23. First, Ohio notes that neither state adjutants general nor state national guards are expressly listed in the Statute. Id. at 23. Second, Ohio points out that the adjutants general and the national guards are not labor organizations and that the FLRA has never claimed that they are labor organizations. Id. Third, Ohio argues that the Statute’s list of covered executive departments is exhaustive, because it contains only a list of departments and has no catch-all term that might sweep in other entities. Id. at 20–21, 23. Fourth, Ohio contends that state national guards and adjutants general are not government corporations, because government corporations must be “owned” or “controlled” by the federal government, which they are not. Id. at 23. Finally, Ohio maintains that they are not “independent establishments” because the Statute includes only entities within the federal executive branch as independent establishments. Id. Thus, Ohio claims, Congress has not given the FLRA authority to regulate the labor practices of state adjutants general or national guards. Id. at 17.

Ohio also asserts that the entities under the FLRA’s authority are all federal entities and not state entities. Id. at 23–24. Thus, Ohio asserts that because the Adjutant General, Adjutant General’s Department, and National Guard are all state entities, they are outside the FLRA’s jurisdiction. Id. at 24. Ohio notes that the Adjutant General himself is appointed by the Governor of Ohio, rather than by the President, and that the requirements and pay for his position are set by Ohio law. Id. Ohio points out that the Adjutant General’s Department is run by a state official (the Adjutant General) and can be sued in the Ohio Court of Claims, which has jurisdiction only over suits against the state of Ohio. Id. at 24–25. Ohio further contends that both the Constitution and federal statute recognize that state national guards are subject to state control, except when they are called into service for the federal government. Id. at 25. Additionally, Ohio argues that treating state adjutants general and national guards as state entities is consistent with other areas of law, such as civil rights statutes, that likewise treat them as state actors. Id. at 26–27. Ohio acknowledges that state adjutants general and national guards have responsibilities under federal law. Id. at 27. However, Ohio notes that other statutes require state officials to carry out federal law, but nevertheless do not turn those state officials into federal officials. Id. at 28.

The FLRA, on the other hand, contends that it has authority not only over the types of entities identified by Ohio, but also over others who supervise the employees of such entities. Brief for Federal Respondent, Federal Labor Relations Authority at 22. Thus, the FLRA argues that because state adjutants general who choose to employ dual-status technicians supervise them on behalf of the Department of the Army and the Department of the Air Force, they are subject to the FLRA’s authority. Id. at 20–22. The FLRA points to the Supreme Court’s decision in NASA v. FLRA, where the Court held that the FLRA could issue orders to NASA’s Office of the Inspector General — even though the Office of the Inspector General was not itself in one of the categories of entities covered by the Statute — because it exercised authority on behalf of NASA, which did fall under the Statute. Id. at 28. The FLRA also maintains that its “regulations and longstanding practice” show that it has authority over components of federal agencies when those components supervise federal employees, even if the components themselves are not entities specifically covered by the Statute. Id. at 29.

The FLRA asserts that state adjutants general supervise dual status technicians on behalf of the Department of Defense, which is an entity covered by the Statute. Id. at 22. The FLRA notes that the technicians are clearly employees of the Department of Defense. Id. at 18. The FLRA contends that state adjutants general only have authority over the technicians because federal law allows the Department of the Army and the Department of the Air Force to “designate” them to do so. Id. at 20. The FLRA argues that the plain meaning of “designate” shows that adjutants general exercise authority over the technicians only as agents of the Department of Defense. Id. at 21–22. Furthermore, the FLRA claims that other statutes make it clear that state adjutants general act on behalf of the Department of the Army and the Department of the Air Force because what they are designated to do is to “employ” technicians who other statutes refer to as “employees of the Department of the Army or the Department of the Air Force.” Id. at 21. The FLRA also maintains that state adjutants general exercise federal power because they have the authority to appoint new technicians into federal civil service and can terminate their status as employees of the federal government. Id. at 20.

THE STRUCTURE AND CONTEXT OF THE STATUTE

Ohio argues that allowing the FLRA to regulate state adjutants general and state national guards would change the balance of power between states and the federal government, and that the Court typically requires Congress to speak clearly when altering that balance. Brief for Petitioners at 29. Ohio notes that Congress usually can regulate only individuals, not states. Id. at 30. Ohio maintains that, even when Congress can regulate states, the Court should presume that Congress has not done so unless it speaks clearly. Id. Ohio cautions that this concern is particularly strong in this case because it concerns military commanders’ control over military personnel, which courts are typically careful not to limit beyond what Congress has directed. Id. at 32. Thus, Ohio contends that even if the Statute could be read to give the FLRA authority to regulate state adjutants general, it does not clearly do so, and thus should not be read that way. Id. at 33.

Ohio also states that the Adjutant General and National Guard cannot be covered by the Statute because they do not have the authority to comply with the order that the FLRA issued. Id. at 37. Ohio notes that the FLRA ordered Ohio to reinstate automatic paycheck deductions for the technicians’ Union dues and to reimburse the Union for the dues it did not receive because Ohio removed technicians from automatic deduction status. Id. at 37 (citing id. at 11–12). But Ohio claims that it does not control the payroll process for the technicians, and that the Department of Defense refused to allow payroll deductions for Union dues unless a specific form was on file for each employee. Id. at 11–12. Thus, Ohio asserts that the proper remedy is for the FLRA to issue an order to the Department of Defense itself. Id. at 37.

The FLRA responds that the balance of power between states and the federal government is not implicated by federal regulations of the labor conditions of federal employees. Brief for Federal Respondent at 37. Furthermore, the FLRA contends that even if the balance of power was implicated, giving collective bargaining rights to technicians did not change that balance because it merely continued pre-existing requirements that had been imposed by Executive Order. Id. at 42. The FLRA also claims that deference to military commanders is not appropriate because the technicians have collective bargaining rights only in their capacities as civilian employees, not as military personnel. Id. at 37.

The FLRA argues that depriving it of jurisdiction over state adjutants general and national guards would effectively remove the collective bargaining rights the Statute gives to dual status technicians. Id. at 18. The FLRA notes that technicians are employees of either the Department of the Army or the Department of the Air Force, to which the Statute applies. Id. at 19. The FLRA further observes that technicians had collective bargaining rights under a series of Executive Orders even before the Statute was passed, and that Congress expressly incorporated these Executive Orders when making the technicians federal employees. Id. at 23. Thus, the FLRA emphasizes that the Statute gives the technicians collective bargaining rights, which would become effectively unenforceable if the FLRA lacked authority over the state adjutants general and national guards. Id. at 22. The FLRA concludes that the Court should hold that the Statute applies to state adjutants general and national guards, because doing so is the only way to reconcile Congress’ requirements that the technicians receive collective bargaining rights, and that the federal government designate adjutants general to employ and supervise them. Id. at 30.

Discussion 

MILITARY FEDERALISM IMPLICATIONS

The States of Mississippi, Alabama, Alaska, Arkansas, Louisiana, Montana, Oklahoma, South Dakota, Texas, Utah, and West Virginia (“Mississippi et al.”), in support of Ohio, assert that treating a state militia as a federal agency implicates constitutional federalism concerns. Brief of Mississippi et al., in Support of Petitioners at 16. Mississippi et al. focus on the original purpose of state militias at the founding, stating that at the founding, the army was specifically separate from militias. Id. at 5. Mississippi et al. contend that under the Articles of Confederation, the state militia system was ineffective and unreliable, so the new system under the Constitution specifically limited federal power. Id. According to Mississippi et al., the new system under the Constitution ensured local, rather than national, control over state militias, ensuring that states were able to check potential federal abuses. Id. at 8.

Mississippi et al. argue that the Sixth Circuit’s interpretation of the state militia as a federal agency goes against the original constitutional purpose of state militias. Id. at 16. Mississippi et al. acknowledge that there are constitutional guarantees in place to ensure state-level leadership and authority, however, Mississippi et al. maintain there is a fundamental issue with limiting how an Adjutant General can manage their own guard members. Id. at 16–17. Furthermore, Mississippi et al. take issue with how this system may potentially cloud political accountability with respect to the Guard’s actions. Id. at 17. According to Mississippi et al., by giving more power to the federal government, and reducing state authority, state citizens will not be able to properly hold the federal government accountable, when they expect the state government to run the state militia. Id. Finally, Mississippi et al. argue that this increased federalization of state militias runs the risk that a state Guard will not be readily available for state needs, if the federal government can use the state militias at will, infringing on state liberties. Id. at 18.

Military Law Scholars (“Scholars”), in support of the FLRA, counter that the FLRA’s jurisdiction over the Adjutant General and the Guard does not pose an issue for federalism, as the federal government was always expected to play a primary role in regulating state militias. Brief of Military Law Scholars, in Support of Respondents at 5. The Scholars maintain that, contrary to what amici in support of Ohio have argued, the Framers did not want militias to be state-centered, but actually wanted their regulation to be primarily federal in nature. Id. The Scholars argue that an entirely state-based militia failed under the Articles of Confederation, and federalizing the system was a response to that failure. Id. The Scholars concede that the Framers viewed state militias as a solution to the threat of concentrating too much power in the federal government’s army, however, they were also concerned with regulating these state militias to prevent them from acquiring too much power. Id. at 8–9. The Scholars argue that the Second Amendment gives plenary power over militias to Congress, not to the states, as amici for Ohio maintain. Id. at 12.

The Scholars also point out that the role of the National Guard has changed over time, and that increased federal control makes sense in today’s political landscape. Id. at 20. The Scholars point to the mid-20th century, during the multiple world wars, when the Guard was further federalized due to increasing national security concerns. Id. The Scholars assert that further state control over the National Guard would prevent effective federal responses to national problems. Id. Furthermore, the Scholars posit that given the current world order with international wars and pandemics, Congress has an interest in maintaining a National Guard that is unified and ready to assist with a variety of situations, many of which are national in nature. Id. at 25–26.

Conclusion 

Acknowledgments 

Additional Resources