Case Tests Collective Bargaining Rights of National Guard Technicians

Leah Shepherd By Leah Shepherd January 10, 2023
soldier working on computer

​The Supreme Court heard oral arguments on Jan. 9 in a case that will determine whether a unique group of federal employees within the National Guard can keep their union rights. The case, called Ohio Adjutant General's Department v. Federal Labor Relations Authority, raises the question of whether state National Guards can be forced to collectively bargain with National Guard technicians.


The National Guard is a joint state and federal operation. Unlike part-time National Guard members, the technicians are full-time employees who do clerical, administrative and technical jobs relating to equipment maintenance, human resources, information technology and more.

In 1968, the National Guard Technicians Act made the technicians federal employees, so they could gain access to the fringe and retirement benefits of federal employees. Their role is a hybrid of military and civilian classifications. In this case, the technicians are hired by Ohio and receive paychecks directly from the U.S. Defense Department.

The American Federation of Government Employees, a union representing the technicians in Ohio's Army and Air National Guards, filed unfair labor practice complaints with the Federal Labor Relations Authority (FLRA). The union alleged that the Ohio National Guard committed unfair labor practices by:

  • Not bargaining in good faith.
  • Failing to recognize the union as the exclusive bargaining representative.
  • Not deducting union dues from paychecks.
  • Recommending that union-dues deductions stop.
  • Violating a collective-bargaining agreement by reassigning some technicians without consulting the union.

The Civil Service Reform Act bestows collective bargaining rights, but it applies only to workers in federal agencies. The lawsuit before the Supreme Court questions whether the state National Guards are considered federal agencies when they act as employers of the technicians. The Ohio National Guard argued that it is a component of the state government, not an executive department and therefore not a federal agency under the FLRA's jurisdiction.

The law gives technicians "a right to bargain with their direct supervisors subject to the FLRA's enforcement authority," said Nicole Reaves, an attorney for the FLRA. "It makes no sense to require [the Department of Defense] to threaten the nuclear option of withholding federal funding or recognition to state National Guards to enforce routine FLRA orders."

If that move becomes necessary, "that has actual implications for the relationship between state national guards and their federal components. There could be real national security risks," she added.

Justices Respond

The Department of Defense has to delegate its supervisory and employment authority to the state National Guards, and someone has to be at the other side of the table in order for the technicians to have real bargaining rights, said Justice Elena Kagan. The technicians should have to collectively bargain with the Department of Defense, said Benjamin Flowers, an attorney representing the Ohio National Guard.

"Why would [Congress] have wanted dual-service status workers to have a different kind of collective bargaining right than other similarly situated employees?" asked Justice Ketanji Brown Jackson.

"These technicians serve, even in their civilian capacity, very important military tasks," Flowers replied. "It's perfectly reasonable for Congress to say, in that context, 'We want the Defense Department involved because they answer to the president, and they have to make sure that whatever is being done doesn't frustrate his commander-in-chief powers.'"

Chief Justice John Roberts said it would "seem odd to have one entity doing the negotiation and another entity doing the supervision."

The Department of Defense controls "many of the aspects over which disputes might arise and which [technicians] may well wish to collectively bargain, so it does make more sense that they collectively bargain with the entities that the law says are their employers," Flowers said.

Historical Perspective

Sotomayor referred to a 2001 case in which the FLRA ruled that the Mississippi National Guard acted as a federal agency in matters concerning the employment of technicians.

Justice Clarence Thomas wasn't convinced. "There's always delegations from the head of agencies to subparts, but those delegees are not converted to agencies," he said.

In the 1970s, the same issue came up, and some states tried to get Congress to pass a law so they wouldn't have to collectively bargain with the technicians, but Congress didn't approve that proposal. "The carveout that would have changed the statute and solved your concern never made it," Kavanaugh said to Flowers. "History illuminates this is not some isolated thing that was inadvertent."

Sotomayor seemed concerned about the military ramifications for the case. Ohio's lawsuit is "asking us to permit labor bargains to threaten national security because there's no peaceful way to adjudicate this before an agency," she told Flowers. "You're the first National Guard to say, 'We won't honor our commitments.'"

"We have much greater trust in the Department of Defense to work these disputes out before they even become disputes, without compromising our military interests," Flowers said.

Eleven Republican-led states—Alabama, Alaska, Arkansas, Idaho, Louisiana, Mississippi, Oklahoma, South Dakota, Texas, Utah and West Virgina—filed a friend of the court brief, supporting Ohio's case. They argued that "the Constitution limits and checks the national government's military power by retaining crucial powers for the states," including the power to govern state militias that are not in service to the United States.

Justice Neil Gorsuch said, "I'm just curious about the federalism implications of this case." He questioned whether certain federal employees would become federal agencies if the court rules in favor of the FLRA.

Reaves said they wouldn't because the technicians represent the only situation "where a state employee supervises, hires and fires federal employees into a federal role."



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