FLRA Can Regulate State National Guard Under Specific Conditions in Sixth Circuit Ruling
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
The Ohio National Guard and its Adjutant General (Guard) petitioned the Sixth Circuit Court of Appeals, requesting that it review a decision and order of the Federal Labor Relations Authority (FLRA). The decision and order enforced a collective bargaining agreement (CBA) between the Guard and the Union that represents its technicians, the American Federation of Government Employees, Local 3970, AFL-CIO (Union).
The CBA at issue originated in 2011, and it was set to expire in 2014. Instead of crafting a new CBA, the Guard issued a memorandum in January 2014 affirming that it was still bound by the mandatory bargaining topics established in the 2011 CBA. In September 2016, though, the Guard issued a conflicting memorandum. The memo stated that the Guard was not bound by the 2011 CBA and that the Guard “question[ed] the applicability” of the Federal Service Labor-Management Relations Act, 5 U.S.C. §§ 7101–7135, (Statute) “to the National Guard Technicians.” Importantly, National Guard technicians are considered dual-status employees because their employment involves “a hybrid both of federal and state, and of civilian and military strains.” Further, the technicians hold military grades and wear military uniforms, but they are given the same benefits and rights as federal employees in the civil service.
After the issuance of the 2016 memo, the Guard then began to terminate technicians’ union dues deductions. The Guard first failed to provide Standard Form 1187s, which bargaining-unit employees must submit in order to allow union dues to be deducted from their paychecks. If dues-paying members did not resubmit the Form 1187s, the Guard completed and signed forms cancelling the payroll deductions of dues without the employees’ consent. Next, the Guard sent a letter to a group of employees with Form 1187s still on file, recommending that they cease paying dues because there was no longer a CBA.
In March and April of 2017, the Union filed several Unfair Labor Practice charges with the FLRA. The FLRA General Counsel then issued complaints alleging that the Guard refused to negotiate in good faith and that it interfered with, restrained, and coerced employees in the exercise of their rights under the Statute. At a subsequent hearing, an Administrative Law Judge (“ALJ”) found that the Guard is an executive agency, the FLRA has jurisdiction over the Guard, the technicians have collective-bargaining rights, and that the Guard’s actions clearly violated the Statute. The ALJ then ordered the Guard to cease and desist refusing to recognize and comply with the 2011 CBA. Lastly, the FLRA recommended that the Guard reinstate dues allotments and reimburse the Union for dues that were improperly cancelled.
On appeal, the Guard argued that the FLRA did not have jurisdiction to adjudicate disputes between the Guard and the Union, that the FLRA acted unconstitutionally by issuing orders to state national guards, and that it could not legally comply with the FLRA’s order. Additionally, the FLRA argued that the Guard waived several of its arguments.
Relying on Section 7123(c) of the Statute, the FLRA asserted that the Guard waived five of its arguments. Section 7123(c) states that a court may not consider any argument made by a party on judicial review that was not already brought before the FLRA. The court declined this argument, stating that each of the arguments at issue were consistent with the claims previously brought before the FLRA.
The court then considered the FLRA’s jurisdiction over the Guard and established that the Guard is a federal executive agency under the Statute. The scope of the FLRA’s jurisdiction extends only to “executive agencies.” 5 U.S.C. § 7103(a)(3). The court reasoned that the Guard should be defined as an executive agency because “[w]hile 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.’” Additionally, the Guard is an employer of dual-status technicians who receive “the benefits and rights generally” provided to federal employees in the civil service.
The Guard next argued that technicians are excluded from coverage by the FLRA as members of the uniformed service. The Civil Service Reform Act separates employees into three categories: the civil service, the armed forces, and the uniformed services. 5 U.S.C. § 2101(1). But, statutory authority classifies dual-status technicians as federal civilian employees “for the purposes of this section and any other provisions of the law.” 10 U.S.C. § 10216(a). On this basis, the court concluded that dual-status technicians are not excluded from FLRA coverage even though they hold military grades and wear military uniforms.
The court then clarified that the FLRA can constitutionally enforce the Statute by issuing orders to state national guards in regard to dual-status technicians. Lastly, the court instructed the Guard that it would not violate federal law by complying with the FLRA’s order, as the FLRA is empowered to protect labor rights of technicians.
Accordingly, the court upheld that FLRA’s decision and order.
Find the full case here: Ohio Adjutant General’s Department v. Federal Labor Relations Authority.
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