The Ohio Adjutant Gen.'s Dep't. v. Fed. Labor Relations Auth.

• Decision Date: 18 May 2023
• Docket Number: 21-1454
• Parties: 598 U.S.__ (2023) v. FEDERAL LABOR RELATIONS AUTHORITY, et al. THE OHIO ADJUTANT GENERAL'S DEPARTMENT, et al., PETITIONERS
• Court: U.S. Supreme Court

1

598 U.S.__ (2023)

THE OHIO ADJUTANT GENERAL'S DEPARTMENT, et al., PETITIONERS v. FEDERAL LABOR RELATIONS AUTHORITY, et al.

No. 21-1454

United States Supreme Court

May 18, 2023

Argued January 9, 2023

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

The Federal Service Labor-Management Relations Statute (FSLMRS) provides for collective bargaining between federal agencies and their employees' unions; bars each from committing unfair labor practices; and establishes the Federal Labor Relations Authority (FLRA) to investigate and adjudicate labor disputes. See 5 U.S.C. §7101 et seq. At issue here, the American Federation of Government Employees Local 3970, AFL-CIO is the exclusive representative of certain federal civil-service employees known as dual-status technicians who work for the Ohio National Guard. After their prior collective-bargaining agreement (CBA) expired petitioners here-the Ohio National Guard, the Ohio Adjutant General, and the Ohio Adjutant General's Department (collectively the Guard)-asserted that the Guard was not bound by the FSLMRS when interacting with the Guard's dual-status technicians. The Union subsequently filed an unfair labor practice complaint with the FLRA to resolve the dispute. Pointing to the fact that the FLRA only has jurisdiction over labor organizations and federal agencies petitioners argued that the Guard was not an "agency" and that dual-status technician bargaining-unit employees were not "employees" for purposes of the FSLMRS. The Administrative Law Judge issued a recommended decision finding that: the FLRA had jurisdiction over the Guard; the dual-status technicians had collective-bargaining rights under the FSLMRS; and the Guard's actions in repudiating the CBA violated the FSLMRS. A divided panel of the FLRA adopted the ALJ's findings, conclusions, and remedial order. Petitioners sought review in the Sixth Circuit, which denied relief.

Held The FLRA had jurisdiction over this labor dispute because a State National Guard acts as a federal agency for purposes of the FSLMRS when it hires and supervises dual-status technicians serving in their civilian role.

The question whether petitioners are an "agency" for purposes of the FSLMRS when they act as supervisors of dual-status technicians is bounded by a series of defined statutory terms. 5 U.S.C. §7116(a)(1). The FSLMRS defines "agency" to include the Department of Defense. §7103(a)(3). And each dual-status "technician . . . is an employee of the Department of the Army or the Department of the Air Force," 32 U.S.C. §709(e); see also 10 U.S.C. §10216(a)(1)(A). Those Departments, in turn, are components of the Department of Defense. §§111(b)(6) and (8). Components of covered agencies plainly fall within the reach of the FSLMRS. See 5 U.S.C. §§7103(a)(12), 7112(a). Thus, when petitioners employ dual-status technicians, they-like components of an agency-exercise the authority of the Department of Defense, a covered agency.

The statutory authority permitting the Ohio Adjutant General to employ dual-status technicians as civilian employees in the federal civil service reinforces this point. See 5 U.S.C. §2105(a)(1)(F). Congress has required the Secretaries of the Army and Air Force to "designate" adjutants general "to employ and administer" technicians. 32 U.S.C. §709(d). That designation is the sole basis for petitioners' authority to employ technicians performing work in their federal civilian roles. Here, a 1968 order of the Secretary of the Army "designate[s]" and "empower[s]" each adjutant general "to employ and administer the Army National Guard technicians authorized for his State . . . as the case may be." General Order No. 85, ¶3. Accordingly, dual-status technicians are ultimately employees of the Secretaries of the Army and the Air Force, and petitioners are the Secretaries' designees for purposes of dual-status technician employment. Should a state adjutant general wish to employ federal dual-status technicians, the adjutant general must do so pursuant to delegated federal authority and subject to federal civil-service requirements. See 5 U.S.C. §2105(a)(1)(F).

The evolution of federal agency-employee relations law and the text of §7135(b) lend further support to the FLRA's exercise of authority over the Guard. Section 7135(b) explicitly continues prior practice under the provisions of Executive Order No. 11491-the precursor to the FSLMRS-except where specifically revoked by the President or altered by the FSLMRS or corresponding regulations. The 1971 decision in Thompson Field is on point. See Mississippi National Guard, 172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Reports (A/SLMR) No. 20. There, the Assistant Secretary of Labor-exercising adjudicative authority under Executive Order No. 11491 analogous to the FLRA's-held that Mississippi's National Guard technicians were employees of the Federal Government under Executive Order No. 11491. 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. Id., at 7. The definitions of "employee" and "agency" that Thompson Field examined were materially identical to those that Congress ultimately adopted in the FSLMRS. The Court thus ordinarily presumes that the FSLMRS maintained the same coverage that existed under the prior regime, see, e.g., George v. McDonough, 596 U.S.___, ___, and the Court identifies nothing to weaken that presumption here. Pp. 5-11.

21 F. 4th 401, affirmed.

THOMAS, J. DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J, AND SOTOMAYOR, KAGAN, KAVANAUGH, BARRETT, AND JACKSON, JJ., JOINED. ALITO, J., FILED A DISSENTING OPINION, IN WHICH GORSUCH, J., JOINED.

OPINION

THOMAS, JUSTICE

This case requires us to determine whether the Federal Labor Relations Authority (FLRA) properly exercised jurisdiction over an unfair labor practices dispute. On one side were the Ohio National Guard, the Ohio Adjutant General, and the Ohio Adjutant General's Department (collectively petitioners or the Guard). On the other was the American Federation of Government Employees, Local 3970, AFL-CIO (Union), which represents federal employees known as dual-status technicians who work in both civilian and military roles for the Guard.

The Union petitioned the FLRA to resolve the dispute. But, under the Federal Service Labor-Management Relations Statute (FSLMRS or Statute), the FLRA only has jurisdiction over labor organizations and federal "agencies"- and petitioners insist that they are neither. 5 U.S.C. §7101 et seq. We hold, however, that petitioners act as a federal "agency" when they hire and supervise dual-status technicians serving in their civilian role.

I

A

Enacted in 1978, the FSLMRS establishes a comprehensive framework governing labor-management relations in federal agencies. It secures the right of "[e]ach employee" "to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal." §7102. And, it further guarantees that "each employee shall be protected in the exercise of such right." Ibid. To that end, the FSLMRS provides for collective bargaining between federal agencies and their employees' unions, and it bars each from committing unfair labor practices. See §§7102(2) and 7116(a)-(b). For example, an agency may not "interfere with, restrain, or coerce any employee in the exercise by the employee of any right under" the Statute; "refuse to consult or negotiate in good faith with a labor organization as required by" the Statute or "otherwise fail or refuse to comply with any provision of" the Statute. §§7116(a)(1), (5) (8).

The Statute creates the FLRA and tasks it with administering this framework, including by investigating and adjudicating labor disputes. §7105(a)(2)(G); see also §§7104 and 7118(a)(1). It provides that the FLRA's general counsel "shall investigate" a charge against "any agency or labor organization" and, if warranted, may issue a complaint calling for a hearing before the FLRA. §§7118(a)(1)-(2). The FLRA is then responsible for "conduct[ing] hearings and re-solv[ing such] complaints." §7105(a)(2)(G). If the FLRA determines that an agency or a union has engaged in an unfair labor practice, it "may require" the entity "to cease and desist from violations of [the Statute] and require it to take any remedial action it considers appropriate." §7105(g)(3).

This case concerns the Statute's application to a unique category of federal civil-service employees: dual-status technicians working for the State National Guards. These "rare bird[s]" occupy both civilian and military roles. Babcock v. Kijakazi, 595 U.S. ___, ___ (2022) (slip op., at 2). They serve as "civilian employee[s]" engaged in "organizing, administering, instructing," "training," or "maintenance and repair of supplies" to assist the National Guard. 10 U.S.C. §10216(a)(1)(C); see 32 U.S.C. §§709(a)(1)-(2); Babcock, 595 U.S., at (slip op., at 2). Yet, they must "as a condition of that employment . . . maintain membership in the [National Guard]" and wear a uniform while working. 10 U.S.C. §10216(a)(1)(B); see 32 U.S.C. §§709(b)(2)-(4). Except when participating as National Guard members in part-time drills, training, or active-duty deployment, see 32 U.S.C. §§502(a) and 709(g)(2), dualstatus technicians work full time in a civilian capacity and receive federal civil-service pay. See Babcock, 595 U.S., at ___-___ (slip op., at 2-3); see also 5 U.S.C. §2101(a).

Importantly under the...