SCOTUS: FLRA can regulate State National Guard labor disputes with dual-status technicians

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.

A union representing federal civil-service employees known as dual-status technicians who work for the Ohio National Guard filed an unfair labor practice complaint with the FLRA because the Guard asserted that the Guard was not bound by the FSLMRS when interacting with the Guard’s dual-status technicians.

The US Supreme Court (7-2) holds that 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. Ohio Adjutant General’s Department v. FLRA (US Supreme Ct 05/18/2023) [PDF]

It all depends on whether the Guard is an "agency" under the statute when acting as a supervisor of dual-status technicians. "Agency" includes the Department of Defense, and each dual-status technician is an employee of the Department of the Army or the Department of the Air Force. Those Departments, in turn, are components of the Department of Defense. Thus, when the Guard employs dual-status technicians, the Guard—like components of an agency—exercise the authority of the Department of Defense, a covered agency.

The DISSENT points out that the majority says the Guard “act[s] as a federal ‘agency,’” “exercise[s] the authority of” a covered agency, and even “functions as an agency," but it is not actually a federal agency – so "the FLRA lacks jurisdiction to enter remedial orders against them."