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

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.