FLRA’s Role and Dual-Status National Guard Technicians
A U.S. Supreme Court decision issued on May 18, 2023, addressed the issue of whether the Federal Labor Relations Authority (FLRA) had jurisdiction over the Ohio National Guard and other state militias concerning their dual-status technicians.
Dual-status technicians are federal civil-service employees who work for the state militias and also serve as military personnel. The Ohio National Guard argued that it was not a federal agency and that its technicians were not employees covered by the Federal Service Labor-Management Relations Statute (FSLMRS).
Questions about the role of the FLRA and the applicability of the federal labor relations statute to National Guard technicians have been around for decades. A major issue has been the requirements for wearing a military uniform by technicians.
It is unsurprising that it has come around again because of the strong opinions surrounding the issue.
The current case started in 2016. With President Trump in office, new Supreme Court justices on the bench, and a different philosophy of government than some earlier presidents, those who disagreed with having the FLRA involved in determining issues saw another opportunity. It was a reasonable effort, but most Supreme Court justices did not concur with this latest attempt to limit the FLRA’s role.
What Are Dual-Status Technicians?
This case concerns the application of the federal labor relations statute to a unique category of federal civil-service employees: dual-status technicians working for State National Guards. These unique jobs have both civilian and military roles. They serve as “civilian employee[s]” engaged in “organizing, administering, instructing,” “training,” or “maintenance and repair of supplies” to assist the National Guard. Technicians are dual-status employees because their employment is a hybrid of federal and state and a combination of civilian and military duties.
Dual-status technicians maintain membership in the National Guard and wear a uniform while working. The exception is when they participate as National Guard members in part-time drills, training, or active-duty deployment. Dual-status technicians work full-time in a civilian capacity and receive federal civil service pay.
In September 2016, the National Guard issued a memo stating that the previous collective bargaining agreement did not bind the Ohio National Guard (it had expired in 2014) and the Ohio National Guard did not consider itself obligated to abide by the federal labor relations statute.
Position of Ohio Adjutant General
In its petition to the Supreme Court, the Ohio Adjutant General Department contended that “Allowing the Federal Labor Relations Authority to regulate the labor practices of state militias under the Reform Act contravenes the principle that statutes must be interpreted, where possible, not to interfere with state sovereignty or to upset the balance of state and federal power.”
Decision of the Supreme Court
The Court ruled 7-2 in favor of the FLRA, holding that state militias act as federal agencies when they hire and supervise dual-status technicians serving in their civilian roles.
The Court reasoned that state militias are required by federal law to employ dual-status technicians who are considered employees of the Department of Defense and therefore act on behalf of the Department of Defense when they do so. The Court rejected the argument that the Department of Defense, not state militias, should be responsible for bargaining with unions representing technicians.
Justice Clarence Thomas wrote the majority opinion. Justice Alito wrote a dissenting opinion, joined by Justice Gorsuch, arguing that state militias are not federal agencies and that the FLRA only has power over federal agencies.
Here is a summary of the Court in this case:
Each dual-status technician is an employee of the Department of the Army or the Air Force; those Departments are, in turn, components of the Department of Defense, and the Department of Defense is a covered agency under the Statute. Further, a designation from the Department of the Army is the sole basis for petitioners’ authority to employ dual-status technicians. Accordingly, petitioners employ federal dual-status technicians pursuant to delegated federal authority and subject to federal civil-service requirements.
Dissenting Opinion Summary
In a dissenting opinion, Justice Samuel Alito succinctly covered the dissent in this paragraph:
Because it is so clear that no petitioner is an “agency,” the Court sidesteps the issue. Instead, it rests its decision on three main grounds. It notes: (1) the dual status technicians are federal employees, (2) petitioners “exercise the authority of ” a covered agency as components or representatives of that agency, ante, at 7, and (3) pre-FSLMRS administrative practice supports the FLRA’s exercise of jurisdiction. None of these grounds justifies the conclusion that any of the petitioners is an “agency” subject to the FLRA’s remedial authority.
