High Court Will Consider Whether FLRA Can Decide Dispute Between Ohio National Guard and Union

Allen Smith, J.D. By Allen Smith, J.D. October 20, 2022

​The U.S. Supreme Court has agreed to review whether the Federal Labor Relations Authority (FLRA) can decide a dispute between the Ohio National Guard and a union representing the Ohio National Guard's technicians. We've gathered articles on the news from SHRM Online and other outlets.

Case Before the Court

The Ohio National Guard went to federal court after the FLRA ruled that the Guard committed several unfair labor practices, including failing to bargain with the union, ending the automatic withdrawal of members' dues payments and announcing it's not bound by federal-sector labor law. The FLRA argued that the 6th U.S. Circuit Court of Appeals correctly held that Guard technicians, who have dual status as members of the state militia and as federal employees, are protected by federal-sector labor law.


Ohio Attorney General's Statement

Ohio Attorney General Dave Yost issued the following statement on the Supreme Court's decision to review Ohio Adjutant General v. Federal Labor Relations Authority: "I have consistently gone to court to combat federal overreach, and this case is more of the same. Long story short, the FLRA can regulate federal agencies only. Neither the Ohio National Guard nor Ohio Adjutant General's Department is a federal agency. So the FLRA cannot regulate them."

(Ohio Attorney General)

6th Circuit Ruling

The 6th Circuit had upheld a ruling by the FLRA that said the Ohio National Guard violated federal labor law in 2016 by abruptly ending its 45-year bargaining relationship with the American Federation of Government Employees union. The two other federal appeals courts to consider the issue—the 5th and D.C. circuits—have ruled the same way.

Ohio is backed by 11 Republican-led states, including Mississippi and Texas, which filed a brief in June asking the Supreme Court to take the case.


Key Statutory Provision

The key statutory provision here authorizes the FLRA to regulate labor relations issues involving employees of an "executive agency," defined as "an executive department, a government corporation and an independent establishment." An "independent establishment" is defined as "an establishment in the executive branch … [that] is not an executive department, military department [or] government corporation." The Ohio National Guard contends that a state national guard does not qualify under any of these definitions.

(The National Law Review)

Other Cases the Supreme Court Recently Agreed to Review

The Supreme Court announced on Oct. 3 it will hear this case. On the same day, which was the opening day of the court's new term, the court also announced it will review a case that will clarify the scope of the attorney-client privilege and another case involving whether state tort claims are pre-empted when there is property damage incidental to a work stoppage.

(SHRM Online) and (SHRM Online)



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