National Guardsman have same protections as federal employees

On May 18 the U.S. Supreme Court ruled in a 7-2 decision, in Ohio Adjutant General's Department v. Federal Labor Relations Authority, 598 U.S. (2023), that states' National Guard (in this case Ohio) fall under the authority of the Federal Labor Relations Authority (FLRA) when they manage hybrid federal-state personnel.

The verdict will grant dual-status technicians collective bargaining rights as well as additional safeguards, such as the right to union representation during formal negotiations about any condition of employment, akin to Weingarten privileges in the private sector, and essentially consider them federal employees with the same legal rights as traditional federal employees.

The Ohio National Guard is a joint state and federal effort. The National Guard Technicians Act of 1968 elevated the technicians to the status of federal employees, granting them the same fringe and retirement benefits as other U.S. government employees. The dual-status technicians are full-time personnel who hold clerical, administrative, and technical tasks relating to equipment maintenance, human resources, information technology, and other functions, in contrast to part-time National Guard personnel. Essentially, these individuals occupy a civilian and military role where, except for drills, training, and active-duty deployment, they work full time in a civilian role and receive federal civil-service pay through the Department of Defense. Specifically, in this situation, the technicians are hired by Ohio and paid directly by the US Defense Department (DOD). As a requirement of employment, they must remain members of the National Guard and wear a uniform while working.

The American Federation of Government Employees, a union that represents technicians in Ohio's Army and Air National Guards, filed unfair labor practice allegations with the FLRA. Specifically, they alleged that the Ohio National Guard committed these unfair labor practices by not deducting union dues from paychecks, failing to recognize the union as the exclusive bargaining representative, and violating collective bargaining agreements.

Collective bargaining rights are granted under the Civil Service Reform Act, but exclusively for employees of federal agencies. In this case, the Supreme Court answered the question of whether state National Guards that employ technicians are regarded as federal organizations. The Ohio National Guard maintained that because it is a part of the state government, it does not fall under the purview of the FLRA.

However, the Supreme Court determined that the technicians have negotiating rights under the Federal Service Labor-Management Relations Statute (FSLMRS) and that the state National Guards are agencies subject to the authority of the FLRA when serving as supervisors of the technicians, specifically stating that "components of covered agencies plainly fall within the statute's reach." (citing Ohio Adjutant General's Department v. Federal Labor Relations Authority, 598 U.S. (2023).

In this case, the covered agency is the Department of Defense. The court found that the dual-status technicians are essentially employees of the Army or Air Force because the secretaries of the Army and Air Force provide adjutants with general authority to hire and manage the technicians. The court observed that it would be peculiar if the technicians, who are considered workers under the FSLMRS, were overseen by a body that was not compelled to protect the rights that were secured by the FSLMRS.

In dissent, Justices Samuel Alito and Neil Gorsuch claimed that the majority failed to prove that the Guard constituted an "agency" within the meaning of the FSLMRS. They argued that the FLRA's exercise of jurisdiction is supported by the court's finding that dual-status technicians are federal workers, the Guard "exercise[s] the authority of" a covered agency, and pre-FSLMRS administrative practice. "None of these grounds justifies the conclusion that any of the petitioners is an 'agency' subject to the FLRA's remedial authority," they noted. (citing Ohio Adjutant General's Department v. Federal Labor Relations Authority, 598 U.S. (2023) (Alito, dissenting).

This decision will likely have an overarching impact on all states' National Guards that work in a dual-status role between military and civilian roles. This decision ultimately provides safeguards for National Guardsmen to collectively bargain with the National Guard to provide further protections from any adverse actions attempted by the National Guard in the future. Furthermore, since the high court ruled that the National Guard acts as a federal agency due to its supervision and hiring of dual-status technicians, it will thus provide further protections typically afforded only to federal employees, including the Merit Systems Protection Board and other government entities that provide protection to federal workers.