FLRA Ruling May Show Need For Congressional Clarification

EDITOR'S NOTE: This story was originally published by Law360

On May 18, the U.S. Supreme Court ruled in favor the American Federation of Government Employees Local 3970 in its unfair labor practice charges against the Ohio National Guard, Ohio adjutant general and the Ohio Adjutant General's Department.[1]

It determined in The Ohio Adjutant General's Department v. Federal Labor Relations Authority that the guard acted as a federal agency in its hiring and supervising of dual-status technicians, who were federal employees protected by the 1978 Federal Service Labor Management Relations Statute, or FSLMRS.

The Supreme Court ruled that the guard had violated the dual-status technicians' rights by refusing to bargain with the union and interfering with members' dues deductions as provided under an expired collective bargaining agreement.

It thus upheld the rulings of the U.S. Court of Appeals for the Sixth Circuit,[2] the Federal Labor Relations Authority[3] and an administrative law judge,[4] who had issued a multipronged cease-and-desist order requiring the Ohio adjutant general to comply with the FSLMRS and cease its unfair labor practices.

This case raises important questions about the determination of what constitutes a federal agency and who is a federal employee. It deals with employees who are dual in civilian-military status, working as civilian technicians while serving in the military as members of the Ohio National Guard.

Ultimately, the Supreme Court held that the guard acted as a federal agency in the employ and supervision of dual-status technicians, who are federal employees and treated as such. In effect, the court took a somewhat behavioral approach to defining a federal agency.

Accordingly, if a nominally state agency is designated by a federal department to perform certain personnel duties it becomes a federal agency while so acting. There are an estimated 32,000 dual-status technicians in the National Guard across the states and territories.

These federal workers, and others similarly situated in other federal and state agencies, would thus be potentially protected under the ambit of the court's decision.

Beyond these circumstances, it is difficult to discern the extent to which such a behavioral approach may apply. This uncertainty suggests the need for ultimate congressional clarification.


The case arose from a memorandum written in September 2016 by the Ohio adjutant general unilaterally severing the long-standing labor-management relationship between the parties that emerged in 1971 when the AFGE local was recognized under Executive Order No. 11491, which concerned labor-management relations in the federal service, and preceded the FSLMRS in determining relevant federal sector policy.

AFGE Local 3970 represented the dual-status technicians working under the employ and supervision of the Ohio adjutant general, who serves in the Ohio governor's cabinet.

In the Technicians Act of 1968, Congress authorized the state adjutants general, through designation by the Secretaries of the U.S. Army and Air Force, to employ and supervise technicians hired under the National Guard technician program that requires military service in the National Guard as a condition of being a civilian technician.

As a duly recognized bargaining representative, the AFGE local negotiated collective bargaining agreements with the guard, the last of which expired in 2014. The parties agreed in a March 2016 memorandum of understanding to continue negotiating to renew the expired contract.

But the Ohio Adjutant General's Department unilaterally nullified the memorandum of understanding in its September 2016 memo to the union, stating that the 1978 statute did not apply to dual-status technicians.

Thus, the Ohio adjutant general refused to renegotiate the collective bargaining agreement that had expired, and proceeded to inform union members in the bargaining unit that their dues withholdings would be terminated if they did not complete a requisite form. After sending this notice, the Ohio adjutant general summarily terminated the dues deductions of 89 AFGE members.

Upon the Ohio adjutant general's renunciation of any obligation to negotiate with the union and interference with dues deduction arrangements, AFGE filed unfair labor practice charges under Section 7116 of the FSLMRS, seeking an order to compel the guard to comply with this federal law.

In receipt of these charges, the general counsel of the FLRA filed a consolidated compliant against the Ohio National Guard and the U.S. Department of Defense, with the Ohio adjutant general intervening on behalf of the Ohio National Guard.

An administrative law judge rendered a decision on June 18, 2018, ruling in favor of the union in unequivocal language:

In short, this is a case of "union busting" in its purest form. If the Agency's legal claims are valid, then it will drastically disrupt the course of labor relations for National Guard dual status technicians — not just in Ohio, but in nearly every state in the country where unions bargain collectively under the Statute.

The FLRA upheld the administrative law judge's decision on June 30, 2020, which was appealed to the Sixth Circuit. The Sixth Circuit upheld the FLRA on December 21, 2021, which was appealed to the Supreme Court.

In the appeal, the court faced the issue of whether the FLRA "properly exercised jurisdiction over an unfair labor practices dispute." The decision turned on whether the guard constitutes a federal agency under the purview of the FSLMRS.

Court's Opinion and Dissenting Opinion

Justice Clarence Thomas delivered the court's majority opinion, citing statutory and case precedent. In terms of statutory language, the court interpreted the FSLMRS's definition of a federal agency as encompassing the DOD, which includes the U.S. Air Force and the U.S. Army.

It also referenced the Technicians Act of 1968, which, as noted, authorizes the secretaries of these two component departments to designate state adjutants general to employ and supervise dual-status technicians.

The court reinforced its basic argument with case precedent involving dual-status technicians of state segments of the National Guard by invoking a decision of the assistant secretary of labor in adjudicating a relevant dispute under the aforementioned Executive Order No. 11491, which gave the assistant secretary adjudicatory power comparable to the FLRA's.

In the 1971 Thompson Field decision, pertaining to such employees in the Mississippi National Guard, the assistant secretary "concluded that the State's adjutant general had 'been designated as an agent of the Secretaries of the Army and the Air Force' in employing and administering dual-status technicians and that this agency relationship created the obligation to comply with Executive Order No. 11491."[5]

The court deemed this ruling precedential given that the FSLMRS largely carried forward relevant policy language included in the executive order.

From this perspective, the court concluded that the FSLMRS covered the guard acting as an agency of the federal government with dual-status technicians as federal employees. The FLRA thus had jurisdiction to determine that the guard had committed unfair labor practices. Therefore, the administrative law judge's cease-and-desist order merited enforcement.

The court's dissenting opinion took a strict constructionist viewpoint. It declared that the FSLMRS does not cover any of the petitioners involved before the court, namely, the Ohio adjutant general, Ohio Adjutant General's Department and the Ohio National Guard.

These entities, according to the dissent, do not constitute federal agencies under the scope of the FSLMRS, regardless of how they might act in hiring and supervising dual-status technicians under designation of the Air Force and Army secretaries. Thus, the FLRA's decision is neither appropriate nor enforceable.

Final Thoughts

Logical argument exists on both sides of the coin in this case. Historical practice and precedent, however, weighs in favor of the majority opinion of the court.

But taking a step back from the pros and cons of this argument, this case strikes me as bespeaking two flaws of the federal sector labor-management system, namely, its overly legalistic and adversarial nature.

This situation betrays mismanagement with absent political leadership. Given the history of this labor-management relationship, it seems unwise to unilaterally discontinue its practice without the authority of elected officials, such as the Ohio governor, the president of the U.S. or Congress, who are accountable to the people.

Ultimately, Congress should address this situation to resolve the dispute that exists about the applicability of the FSLMRS to these dual-status employees, of which there are reportedly more than 32,000 in the National Guard across the states and territories.

In the meantime, the Supreme Court's ruling required the guard to negotiate in good faith with the AFGE Local 3970 and reinstate the dues withholdings, reimbursing the union for lost revenue since the termination of the dues deductions.

Marick F. Masters is a professor at Wayne State University. From 2009-2019, he served as director of Labor@Wayne.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] U.S. Supreme Court, Ohio Adjutant General's Department, et al. v. Federal Labor Relations Authority, et al., No. 21-1454, May 18, 2023.

[2] U.S. Sixth Circuit Court of Appeals, Ohio Adjutant General's Department et al. v. Federal Labor Relations Authority, et al., No. 20-3908, December 21, 2021.

[3] Federal Labor Relations Authority, United States Department of Defense Ohio National Guard v. American Federation of Government Employees, Local 3970, AFL-CIO, 71 FLRA No.165, June 30, 2020.

[4] Administrative Law Judge, United States Department of Defense Ohio National Guard v. American Federation of Government Employees, Local 3970, AFL-CIO, Case Nos. CH-CH-17- 0248, June 18, 2018.

[5] Mississippi National Guard, 172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Reports (A/SLMR) No. 20


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