Supreme Court agrees to hear case challenging FLRA jurisdiction over Ohio National Guard collective bargaining dispute

The U.S. Supreme Court has agreed to hear an appeal of a Sixth Circuit ruling that the Federal Labor Relations Authority (FLRA) has jurisdiction to regulate a collective bargaining dispute between the Ohio National Guard and the American Federation of Government Employees (AFGE). AFGE is the federal employee union representing Ohio National Guard technicians, who are civilian federal employees. 

Background

According to Government Executive’s Erich Wagner:

“[Ohio]’s union contract with the American Federation of Government Employees expired in 2014, and although the state committed to continue to bargain in good faith with the union on a successor agreement, in 2016 it distributed a memo saying that the state is neither bound by the expired contract nor the Civil Service Reform Act. The state then proceeded to cancel union dues payroll deductions from ‘most’ dues-paying members, prompting a series of unfair labor practice complaints that were upheld by the FLRA in 2020.” 

The Ohio Adjutant General’s Department, the Ohio Adjutant General, and the Ohio National Guard appealed the FLRA’s 2020 ruling to the U.S. Court of Appeals for the Sixth Circuit. Senior U.S. Circuit Judge Martha Daughtrey and U.S. Circuit Judges R. Guy Cole Jr. and Eric Clay denied the petition on Dec. 21, 2021. Cole wrote, “The FLRA has jurisdiction to adjudicate the collective-bargaining dispute between the Guard and the Union and to issue an order requiring the Guard to comply. Further, the Guard can lawfully comply with the FLRA’s order.” 

At the Supreme Court

The Ohio petitioners appealed to the Supreme Court on May 13, 2022. The petitioners presented the following questions: 

1. “Does 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?”

2. “The second Militia Clause empowers Congress to ‘provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.’ … Assuming the Civil Service Reform Act of 1978 permits the Federal Labor Relations Authority to regulate the labor practices of state militias, is the Act unconstitutional in its application to labor practices pertaining to militia members who are not employed in the service of the United States?” 

On July 18, 2022, attorneys for the FLRA filed a brief opposing the petition, rephrasing the questions as follows: 

1. “Whether the adjutant general of a state National Guard unit, and the unit itself, are subject to the requirements of the Federal Service Labor-Management Relations Act … when they act in their capacities as supervisors of dual status technicians, who are ‘[f]ederal civilian employe[es],’ …

2. “Whether the Act violates the Militia Clauses, U.S. Const. Art. I, § 8, Cl. 15, 16, by providing dual status technicians the right to collectively bargain over certain conditions of their federal civilian employment.” 

To view additional briefs submitted to the court in this case, click here. 

The justices reviewed the case during their first conference of the 2022-2023 term on Sept. 28. On Oct. 3, the court granted the petition to hear the case, limited to the petitioners’ first question, whether the Civil Service Reform Act of 1978 gives the FLRA authority to regulate state militia labor practices. The case has not yet been set for argument. 

The case name and number are The Ohio Adjutant General’s Department, et al., v. Federal Labor Relations Authority, et al. (No. 21-1454).

What we’re reading

• The 74, “Open Collective Bargaining — Something Everyone Can Agree On?” Oct. 13, 2022
• FXXnow, “Fairfax County firefighters could let union negotiate work conditions for first time in decades,” Oct. 12, 2022
• The Express-Times, “Op-ed spread false information about Pa. teachers’ union. Here’s the truth. | Letter,” Oct. 12, 2022
• Roll Call, “Staffers for Rep. Melanie Stansbury vote to unionize,” Oct. 11, 2022
• Newsweek, “Public-Sector Unions Struggle to Maintain Influence, Membership | Opinion,” Oct. 11, 2022
• Chicago Tribune, “Editorial: Vote ‘no’ on Amendment One,” Oct. 10, 2022
• Government Executive, “A Union Says the National Park Service Violated the Law by Allowing an HR Official to Pursue Decertification After Her Promotion,” Oct. 7, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 150 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.

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