Supreme Court Upholds Union Rights of National Guard Technicians

Leah Shepherd By Leah Shepherd May 19, 2023

​A unique group of federal employees within the National Guard can keep their union rights, according to a 7-2 ruling by the U.S. Supreme Court on May 18. A 6th U.S. Circuit Court of Appeals ruling along these lines was affirmed.

The case, Ohio Adjutant General's Department v. Federal Labor Relations Authority, originally raised the question of whether state National Guards are required to collectively bargain with National Guard dual-status technicians. The Supreme Court ultimately focused on whether the Federal Labor Relations Authority (FLRA) had jurisdiction over the dispute and concluded that it did.

"The Supreme Court reaffirmed long-established law. The adjutant general's attempt to end that relationship was rejected. The parties can get back to re-creating their relationship," said Robert Tobias, a public-sector leadership professor at American University in Washington, D.C.

The ruling "will allow dual-status technicians to have collective bargaining rights, but also additional protections, such as the opportunity to have union representation during formal discussions concerning any condition of employment, similar to Weingarten rights in the private sector," said Brian Holladay, an attorney with Martenson, Hasbrouck & Simon in Atlanta. "The statutory provisions here are unique. The court notes that dual-status technicians are 'rare birds,' so the fallout from this decision for public-sector HR folks should be limited."


The National Guard is a joint state and federal operation. Unlike part-time National Guard members, the dual-status technicians are full-time employees who hold clerical, administrative and technical jobs related to equipment maintenance, human resources, information technology and other functions.

In 1968, the National Guard Technicians Act made the technicians federal employees, giving them access to the same fringe and retirement benefits as other U.S. government 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 (DOD). As a condition of employment, they must maintain membership in the National Guard and wear a uniform while working.

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 FLRA. The union alleged 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 at federal agencies. The Supreme Court examined whether 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 and therefore is not a federal agency under the FLRA's jurisdiction.

Court Rules that Federal Law Covers Technicians

The high court concluded that the technicians have bargaining rights under the Federal Service Labor-Management Relations Statute (FSLMRS), and the state National Guards are agencies subject to the authority of the FLRA when acting as supervisors of the technicians. "Components of covered agencies plainly fall within the statute's reach," the court said.

The DOD is a covered agency. The secretaries of the Army and Air Force empower adjutants general to employ and administer the technicians, so the technicians are ultimately employees of the Army or Air Force. It would be strange if the technicians, who qualify as employees under the FSLMRS, were supervised by an entity not required to safeguard their rights guaranteed under the FSLMRS, the court noted.

"Because adjutants general act on behalf of an agency of the federal government with respect to their supervision of civilian technicians, their actions in that capacity do not implicate the balance between federal and state powers," the court said.

Justices Clarence Thomas, John Roberts, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson joined the majority opinion, while Justices Samuel Alito and Neal Gorsuch dissented.

"A designation to exercise the authority of an agency does not turn the designee into an agency," Alito argued in his dissent. The fact that state National Guards "exercise authority that federal agencies would otherwise hold does not make them agencies any more than the President is Congress when he exercises authority pursuant to congressional authorization."



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