Ohio Adjutant General's Dep't v. Fed. Labor Relations Auth.
| Decision Date | 21 December 2021 |
| Docket Number | No. 20-3908,20-3908 |
| Citation | 21 F.4th 401 |
| Parties | The OHIO ADJUTANT GENERAL'S DEPARTMENT; Major General John C. Harris, Jr., in his official capacity as the Adjutant General of the Ohio National Guard ; United States Department of Defense/Ohio National Guard, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, Local 3970, AFL-CIO, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Petitioners. Rebecca J. Osborne, FEDERAL LABOR RELATIONS AUTHORITY, Washington, D.C., for Respondent. Matthew W. Milledge, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Washington, D.C., for Intervenor. ON BRIEF: Michael J. Hendershot, Benjamin M. Flowers, Dale T. Vitale, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Petitioners. Rebecca J. Osborne, Noah Peters, FEDERAL LABOR RELATIONS AUTHORITY, Washington, D.C., for Respondent. Matthew W. Milledge, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Washington, D.C., for Intervenor.
Before: DAUGHTREY, COLE, and CLAY, Circuit Judges.
The Ohio National Guard and its Adjutant General (collectively, the "Guard") petition this court to review a Federal Labor Relations Authority ("FLRA") decision and order arising out of a collective-bargaining dispute between the Guard and the union that represents its technicians, the American Federation of Government Employees, Local 3970, AFL-CIO (the "Union"). The Guard seeks reversal of the decision and order, arguing that the FLRA does not have jurisdiction under the Federal Service Labor-Management Relations Statute (the "Statute"), 5 U.S.C. §§ 7101 – 7135, to adjudicate federal labor-relations questions between the Guard and the technicians' Union. The Guard additionally argues that it is unconstitutional for the FLRA to enforce the Statute by issuing orders to state national guards and their adjutants general, and that the Guard cannot legally comply with the FLRA's order. We deny the Guard's petition.
This case arises from the Guard's decision to end its 45 year-long collective-bargaining relationship with the Union that represents its technicians. National Guard technicians are civilian federal employees who work in a wide variety of clerical, administrative, and technical roles in support of the Guard's daily operations. N.J. Air Nat'l Guard v. FLRA , 677 F.2d 276, 279 (3d Cir. 1982). Technicians are described as dual-status employees because their employment is "a hybrid, both of federal and state, and of civilian and military strains."
Ill. Nat'l Guard v. FLRA , 854 F.2d 1396, 1398 (D.C. Cir. 1988). Although technicians hold a military grade and wear a military uniform while performing the military aspects of their jobs, they are also "afforded the benefits and rights generally provided for federal employees in the civil service." N.J. Air Nat'l Guard , 677 F.2d at 279.
The most recent collective bargaining agreement ("CBA") between the Guard and the Union was signed in 2011 and was set to expire in 2014. As the expiration date neared, the Guard and the Union started negotiations for a new CBA. But no new agreement was reached by the expiration date. In January 2014, seemingly to continue bargaining and reestablish the CBA, the Guard issued a memorandum. In this memorandum, the Guard recommitted to being bound by the mandatory bargaining topics set forth in the 2011 CBA.
But the Guard did not keep its promise. Instead, in September 2016, the Guard issued a memorandum titled "Collective Bargaining Agreement (CBA)." This memorandum was sent to over 2,000 people, including many bargaining-unit technicians. The memorandum announced:
(ALJ Decision, Pet'r App., Dkt. 19, p. 21a (alterations added.))
After issuing this memorandum and thus ending the collective-bargaining relationship between itself and the technicians' Union, the Guard next started terminating Union dues deductions. First, the Guard told the Union it did not have Standard Form 1187s ("Form 1187s")—which is a request for payroll deductions for dues—on file for most of the dues-paying members of the Union. Federal-sector bargaining-unit members (like those in the Union) are required to submit Form 1187s to their employing agencies. Once a Form 1187 is submitted, union dues are deducted from member paychecks, as provided by 5 U.S.C. § 7115(a). If employees want to cancel dues allotments, they must submit a different form: Standard Form 1188—cancellation of payroll deductions ("Form 1188").
The Guard acknowledged it was required to maintain Form 1187s in its files, and that the bargaining unit employees were not so obligated. Still, the Guard could not explain what happened to the Form 1187s, and it sent letters to most dues-paying members, including the President of the local Union, asking them to either provide a copy of the original form or resubmit the form within 60 days. If members did not submit a new or original Form 1187 within the 60-day period, the Guard completed a Form 1188 for those employees and signed the forms on their behalf without asking for consent. As a result, union dues deductions for around 89 bargaining unit employees were terminated between September 2016 and June 2017. In April 2017, the Guard sent a letter to at least 48 bargaining-unit employees, 41 of whom had a Form 1187 on file. In this letter, the Guard recommended that the union-dues allotments for these employees be terminated because there was no longer a CBA.
In March 2017, in response to the Guard's conduct, the Union filed four Unfair Labor Practice charges ("ULPs") with the FLRA. At this stage in the ULP process, the FLRA's regional General Counsel investigates the charges and decides whether to issue a complaint on behalf of the Union. Here, the General Counsel issued a complaint alleging that the Guard refused to negotiate in good faith when it told employees it was no longer bound by the Statute or the CBA. The General Counsel also alleged that the Guard refused to negotiate in good faith when it unilaterally implemented new policies regarding union-dues deductions and, as a result, the Guard interfered with, restrained, and coerced employees in the exercise of their rights under the Statute.
The Union filed an additional ULP charge with the FLRA in April 2017. After investigating, the FLRA's Regional Director filed a second complaint on behalf of the Union and consolidated this new case with the first one. Like the General Counsel's first complaint, this one also alleged that the Guard interfered with, restrained, and coerced employees in the exercise of their rights under the Statute, this time by recommending the termination of employees' union-dues deductions.
In May 2017, the Guard filed answers to the first and second complaints. In both answers, the Guard admitted certain facts, but denied that it violated the Statute. For example, the Guard conceded that it terminated the dues of most of the paying bargaining-unit employees. But the Guard denied that it constitutes an "agency" and that technician bargaining-unit employees are "employees" for the purposes of the Statute. Both the General Counsel and the Guard moved for summary judgment before an Administrative Law Judge ("ALJ"). The assigned ALJ denied both motions and set the case for a hearing.1
After conducting the hearing, the ALJ issued a recommended decision on June 18, 2018. The ALJ found that: (1) the Guard is an "agency" within the meaning of § 7103(a)(3) ; (2) the FLRA had jurisdiction over the Guard; (3) technicians had collective-bargaining rights under the Statute; and (4) the Guard's actions in repudiating the CBA clearly violated the Statute.
The ALJ ordered the Guard to cease and desist from: (1) "[f]ailing and/or refusing to recognize and comply with the mandatory terms of the expired [CBA];" (2) "[f]ailing and/or refusing to maintain existing personnel policies, and practices and matters affecting working conditions;" (3) "[u]nlawfully removing employees from union dues withholdings, or threatening to do so;" and (4) "[i]nforming employees, supervisors, and managers that the [Guard] does not consider itself bound by the [Statute] and that the CBA... is a nullity." The ALJ also recommended that the Guard reinstate the dues allotments and reimburse to the Union the dues that were improperly cancelled.
If either party disagrees with the ALJ's recommended decision, that party can file an appeal with the FLRA's headquarters in Washington, D.C. These appeals are called "exceptions." 5 C.F.R. § 2423.40. Exceptions are heard by a panel of FLRA members. And in July 2018, the Guard filed exceptions to the ALJ's recommended decision. The Guard argued that the FLRA cannot regulate state national guards because Congress had not called the militia into service. The Guard further argued that the FLRA does not have jurisdiction over technician employees. In addition to challenging the FLRA's jurisdiction,...
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