The Ohio Adjutant General's Dep't v. Fed. Lab. Relations Auth.

Citation: Not availableDocket: 20-3908

Court: Court of Appeals for the Sixth Circuit; December 20, 2021; Federal Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Ohio National Guard and its Adjutant General petitioned the Sixth Circuit Court of Appeals to review a Federal Labor Relations Authority (FLRA) decision regarding a collective bargaining dispute with the American Federation of Government Employees, Local 3970, AFL-CIO. The Guard contended that the FLRA lacked jurisdiction under the Federal Service Labor-Management Relations Statute to address labor-relations issues between the Guard and the Union. They also claimed it was unconstitutional for the FLRA to enforce the Statute against state national guards and asserted an inability to comply with the FLRA’s orders. The court denied the Guard's petition.

The case originated from the Guard's decision to terminate its longstanding collective bargaining relationship with the Union, which represents its technicians—dual-status civilian federal employees who perform various roles supporting the Guard. The most recent collective bargaining agreement (CBA) was signed in 2011 and expired in 2014, with negotiations for a new agreement failing to yield results. Although the Guard initially indicated its intention to continue bargaining in a January 2014 memorandum, it later contradicted this commitment in a September 2016 memorandum, declaring it was no longer bound by the expired CBA.

The Ohio National Guard has expressed doubts regarding the applicability of the Federal Service Labor-Management Relations Statute to National Guard Technicians, affecting its collective bargaining relationship with Local 3970. Until this jurisdictional dispute is resolved, the Guard does not feel obligated to follow the Statute. Following a memorandum that ended the collective bargaining relationship, the Guard began terminating union dues deductions, claiming a lack of Standard Form 1187s, which are necessary for such deductions. Although the Guard acknowledged it must keep these forms, it could not explain their absence and requested members to resubmit the forms within 60 days. If members failed to comply, the Guard completed and submitted cancellation forms on their behalf, terminating dues for approximately 89 employees from September 2016 to June 2017. In April 2017, the Guard sent a letter to 48 employees, suggesting the termination of their dues due to the absence of a collective bargaining agreement (CBA). In response, the Union filed four Unfair Labor Practice (ULP) charges with the Federal Labor Relations Authority (FLRA), claiming the Guard was not negotiating in good faith and was infringing on employees' rights under the Statute. The FLRA’s General Counsel issued a complaint, alleging that the Guard unilaterally changed union-dues policies and interfered with employee rights. An additional ULP charge was filed by the Union in April 2017, leading to a second consolidated complaint. The Guard responded to both complaints by admitting to certain facts, like the termination of dues, but denied being an 'agency' or the technician bargaining-unit employees being 'employees' under the Statute.

Both the General Counsel and the Guard filed motions for summary judgment with an Administrative Law Judge (ALJ), which were both denied, leading to a hearing. Following the hearing, the ALJ issued a decision on June 18, 2018, concluding that: 1) the Guard qualifies as an 'agency' under 7103(a)(3); 2) the Federal Labor Relations Authority (FLRA) has jurisdiction over the Guard; 3) technicians possess collective-bargaining rights under the Statute; and 4) the Guard’s repudiation of the collective bargaining agreement (CBA) violated the Statute. The ALJ mandated the Guard to cease actions including: 1) failing to recognize and comply with the terms of the expired CBA; 2) not maintaining existing personnel policies affecting working conditions; 3) unlawfully removing employees from union dues withholdings; and 4) informing employees that the Guard does not consider itself bound by the Statute. The ALJ additionally recommended reinstating dues allotments and reimbursing the Union for improperly cancelled dues. 

If either party disagrees with the ALJ's recommendation, they can file exceptions with the FLRA in Washington, D.C. In July 2018, the Guard filed exceptions, claiming that the FLRA cannot regulate state national guards and that it lacks jurisdiction over technician employees. The Guard also asserted that its actions were not unfair labor practices (ULPs) and contested the appropriateness of the recommended remedies. In August 2018, the General Counsel opposed these exceptions, referencing a prior decision affirming the FLRA's jurisdiction over the Guard as the employer of protected technicians. On June 30, 2020, a FLRA panel upheld the ALJ's decision, stating the Guard's exceptions merely repeated previous arguments. Subsequently, the Guard petitioned the court to review and reverse the FLRA's order.

The FLRA raised a waiver argument regarding five of the Guard's claims not properly presented in its exceptions, citing Title 5, Section 7123(c) of the U.S. Code. The arguments at issue include: 1) textual arguments related to the Statute; 2) constitutional avoidance principles; 3) federalism considerations; 4) enforceability of the FLRA’s order regarding dues reinstatement; and 5) the 'uniformed services' exception.

The FLRA’s interpretation of the exhaustion requirement under 5 U.S.C. 7123(c) was found insufficient, allowing for broader arguments on appeal than those presented initially. The Guard's omission of specific arguments at an earlier stage did not constitute waiver, as these arguments supported their previously asserted claims. The FLRA's jurisdiction over the Guard was challenged on the grounds that it is not an executive agency per the Statute, which governs collective-bargaining rights for federal employees. The analysis began with whether the Guard qualifies as a federal executive agency under this law. Precedent, specifically from the Michigan Army National Guard case, affirmed that the Statute offers labor rights and protections to dual-status technicians, establishing that state national guards, while state agencies, operate under significant federal jurisdiction. Therefore, the FLRA's jurisdiction over the Michigan National Guard in labor-relations matters extends to the Ohio National Guard as well. Consistent findings from other circuits support the determination that state national guards are considered executive agencies regarding their role as employers and supervisors of technicians. The Guard acknowledged this consensus among circuits, indicating a recognition of the bargaining rights of technicians under the Reform Act.

Accepting the Guard's argument would create a split among circuits, conflicting with existing consensus on the issue. The Guard is identified as a federal executive agency regarding its employment of technicians, which grants the Federal Labor Relations Authority (FLRA) jurisdiction over labor-relations matters under the Statute. The FLRA also requires jurisdiction over dual-status technicians to address collective-bargaining disputes. The Guard contends that technicians are part of the uniformed services, as they must wear military uniforms, which the Civil Service Reform Act excludes from FLRA jurisdiction. However, precedent from *Michigan Army National Guard* establishes that dual-status technicians are covered by the Statute, granting them rights to form or assist labor organizations and engage in collective bargaining concerning their civilian employment aspects. This position cannot be overturned by the current panel without violating procedural constraints. 

Statutory analysis reinforces that dual-status technicians are classified as federal civilian employees, not members of the uniformed services, thus affirming their collective bargaining rights. Legislative history indicates a clear intent by Congress to distinguish civilian technicians from military personnel, ensuring their rights are protected. Consequently, both the Guard and its technicians fall under FLRA jurisdiction. 

Regarding the Guard's constitutional arguments, a review reveals that the Militia Clause allows Congress to govern state national guards only when they are in active service. The Guard’s interpretation that Congressional authority is limited to portions of the militia on active duty is rejected, as the Tenth Amendment does not reserve regulatory power to the states when the Guard is not active.

The FLRA is constitutionally authorized to issue orders to state national guards and their adjutants general, as no appellate court has found a lack of jurisdiction over dual-status technicians or their agencies in labor disputes related to their civilian roles. The Fifth Circuit's decision in Lipscomb supports this view, rejecting claims that the Tenth and Eleventh Amendments limit FLRA jurisdiction over the Mississippi National Guard, concluding that they act as federal executive agencies rather than state entities. This reasoning is applicable to the current case. 

Regarding the legality of reinstating cancelled dues allotments, the Guard's claim that compliance would violate federal law is dismissed as unpersuasive. The FLRA is empowered to safeguard technicians' labor rights and determined that the Guard violated the Statute by submitting Form 1188s to cancel allotments without technicians' consent. Therefore, compliance with the FLRA's reinstatement order is both lawful and feasible. 

In conclusion, the court denies the Guard’s Petition for Review, affirming the FLRA's jurisdiction in the collective-bargaining dispute and the legality of the Guard's compliance with the FLRA's order.